Sexism

One idea that Tennessee has floated — that sex-based laws related to biological sex difference are shielded from scrutiny — is particularly pernicious. As I have shown in research, this has never been the court’s approach. And for good reason. Throughout the history of sex discrimination, hiding bias behind biology has been a common tactic. Many sex-based lines that have been challenged in the court — from a male-only university admissions policy to rules distinguishing mothers and fathers when it comes to the citizenship of their children — have been couched in terms of physical sex differences. Upon examination, the court has acknowledged that sex stereotypes and not biological differences drive these laws. Without requiring that courts take a close look at all sex-based laws, we make it far too easy to legislate on sexual prejudice.

Just as important as addressing women’s subordination, equal protection has been a key tool in striking down laws that confine not just women, but men, to traditional roles and expectations. Equal protection has been used to invalidate laws that exclude men from caregiving or that require anyone to conform their behavior or appearance to sex-based conventions. In doing so, the doctrine helps to free all of us from limiting sex stereotypes.

Seen this way, it is not hard to appreciate that the law at issue here strikes at the heart of sex equality. The Tennessee law — and trans discrimination more generally — is not only about discrimination against trans people, but about ensuring that we all keep in our gender lanes. As Prelogar explained, the law here is “one that prohibits inconsistency with sex,” requiring that children born as boys and girls “look and live like boys and girls.” Tennessee’s argument would call into question the longstanding freedom we all enjoy to live our lives as we wish, regardless of sex.

Oh, my! It is worth the price of admission for this passage alone.

A Hypothetical Example

Once upon a time, a writer proposed that humanity should be divided into large-eared and small-eared people. The writer suggested that small-eared people do not listen, have lower musical ability, are deficient in the ability to empathize with others, and much more. Because they lack interpersonal skills, small-eared people are also responsible for cruelty and some of the greatest evils in world history. The government of the time endorsed the writer’s ideas and enacted laws that divided children, based on the new concept of earedness, into separate kindergartens and schools. As a consequence, the whole of society was divided into large- and small-eared classes, with separate education, health, and legal systems, and with separate housing and recreational spheres for each group.

Later, and at the time when psychology became an independent discipline, researchers began to test hypotheses regarding earedness with empirical means. They found that several of the assumptions regarding earedness, although not all, had empirical support. More recently, evolutionary psychologists discussed the adaptive advantage of ear size; clinical psychologists used the concept as a broad diagnostic tool; psychologists of religion found that religious founders had disproportionately larger ears than their contemporaries; historians of psychology estimated the large-earedness of psychological pioneers using paintings, photographs, and ear descriptions; and debates as to whether Kant had larger ears than Descartes, or whether Kant’s large-earedness had been overestimated, took place among personality psychologists.

Yet, some criticism of the concept also emerged: Methodologists argued that earedness must be adjusted for by height and gender and that the variable is continuous rather than discontinuous. Other critics argued that earedness is a social construct. However, defenders of the concept pointed out that empirical studies confirm the significance of earedness, that the variable is an excellent predictor of professional success, and that earedness demonstrates high correlations with many other psychological variables. They also pointed out that the average person knows that earedness has always existed and that to deny it would contradict common sense.