Sex Equality's Irreconcilable Differences.

FEATURE CONTENTS INTRODUCTION 1068 I. SEX EQUALITY, REAL DIFFERENCES, AND ANTI-STEREOTYPINC 1084 A. Real Differences 1084 1. Biology Is Neutral, or Biology Is Not Bigotry 1095 2. The Two Sexes [...]
This Feature uses recent developments in LGBTQ-equality law to unsettle sex equality's enduring commitment to biology as a basis for sex discrimination. Sex equality rejects sex discrimination when it is based on sex stereotypes, defined as gross generalizations about women and men, but not when it is based on biological differences between the sexes, like pregnancy, anatomy, and strength. Biological justifications for race discrimination--once commonhave been relegated to the trash heap of history. But biological justifications for sex discrimination persist. This is so because sex equality insists that biology alone is neither a stereotype nor an expression of bigotry. Biological rationales for sex discrimination remain attractive to lower federal and state courts, and have received the Supreme Court's blessing, most recently in Dobbs v. Jackson Women's Health Organization. The result is a broad swath of laws across substantive areas--including family law, tort, immigration law, criminal law, property, and abortion law--that sustain sex inequality courtesy of biology and despite a fairly robust anti-stereotyping principle. This Feature argues that sex equality's continued embrace of real differences should not survive what LGBTQ equality shows: that biologically rationalized sex discrimination is an illegal sex stereotype. It uses recent developments in LGBTQ equality surrounding sex, the body, procreation, and parenthood to unsettle sex equality's beliefs in the reality of biological differences between the sexes and in the legality of laws based on those differences. It urges sex equality to grapple with what LGBTQ equality has to say about biology and its role in lawmaking and imagines what the American law of sex might look like when it does. Biologically rationalized sex distinctions have always been sex stereotypes. It is just that now, LGBTQ equality makes those stereotypes easier to see, harder to ignore, and impossible to justify.