GENDER RIGHTS

Strictly speaking, there can be no distinct class of gender rights under the Constitution, but only the same rights for all persons, or all citizens, regardless of sex. The Constitution secures rights only of individuals, not of groups, and makes no distinction between men and women.

No nouns or adjectives denote sex in the Constitution except for the use of the word "male" in the fourteenth amendment, in a provision no longer operative, which never provided any positive authority for sex discrimination.

There are, to be sure, many masculine pronouns in the text, but they have always been understood to be genderless; to hold that these pronouns refer only to men would mean, unless the Constitution is amended, that women are ineligible to serve in the Congress or the presidency, that a female fugitive from justice fleeing to another state need not "be delivered up" (Article IV, section 2), and that accused women do not have the right to counsel—absurdities that have not been indulged in by courts or responsible scholars.

The only mention of sex is in the nineteenth amendment, forbidding denial of the right of citizens to vote "on account of sex," but its ratification did not require any change in the text of the Constitution. If the equal rights amendment, forbidding denial of "equality of rights … on account of sex," had been ratified, the same would have been true: nothing already in the text of the Constitution would have been altered, because there is in it no positive authorization for denial of the right to vote, or of any other right, "on account of sex."

There is another indication that no distinction between men and women is intended in the Constitution. For purposes of determining representation, "the whole number of persons" is to be counted (Article I, section 2, as amended by the Fourteenth Amendment, section 2)—that is, females and males equally. This contrasts strikingly with similar provisions in other documents of the time; for example, the northwest ordinance of 1787 provides that only "male inhabitants" be counted for purposes of representation.

The fact that there has never been any constitutional justification for denying rights or privileges to any person or citizen on account of sex has not prevented legislatures and courts from discriminating against women. Judicial discrimination often relied on sources and doctrines extraneous to the Constitution and, ironically, was frequently expressed in terms of protective concern for the well-being of women. In bradwell v. illinois (1873), Justice joseph p. bradley gave classic form to the pronouncement that the denial of a woman's right was for her own good: "The civil law as well as nature herself has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, women's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life."

To justify his denial that women have the same constitutional right as men "to engage in any and every profession, occupation, or employment," Justice Bradley cited "the civil law," "nature herself," "the divine ordinance," "the nature of things," "the law of the Creator," and, finally, "the general constitution of things"—but not the Constitution of the United States.

Well past the middle of the twentieth century, this combination of protective concern, extraneous doctrines, and silence about the text of the Constitution served as the foundation of sex discrimination in many areas, including employment, property rights, jury duty, voting, pensions, education, and welfare benefits. The decisive turn around finally began in the courts in Reed v. Reed (1971) and frontiero v. richardson (1973). But the correction of centuries of denying women their rights does not establish gender rights, which, like all other group rights, lacks constitutional justification.

In the series of cases since Reed, the Supreme Court sought for the appropriately strict "level of judicial scrutiny of legislation" under the Fourteenth Amendment's equal protection clause. The effort to afford equal protection of the laws is a belated acknowledgment that there is no affirmative basis in the Constitution, and never was, for treating the rights of one person differently from the rights of others on account of sex.

Robert A. Goldwin
(1992)