Yesterday I blogged about Flores-Villar v. United States, the pending Supreme Court case about whether the laws of citizenship can treat the foreign-born children of American men less favorably than it treats the foreign-born children of American women. Ruthann Robson at the Con Law Profs blog discusses the key themes of the oral argument here. I want to highlight one issue that the Justices briefly touched on: what is a sex stereotype?
Flores-Villar claims that the law’s sex classification is based on stereotypes about men’s and women’s closeness to and responsibility for children. The first question at oral argument came from Justice Scalia, who asked:
“What separates a stereotype from reality? Do you say it is not true that if there is [an] illegitimate child, it is much more likely that the woman will end up caring for it than the father would?”
Counsel for Flores-Villar admitted that the woman was more likely to care for the child but suggested that “empirical evidence has not carried the day in gender discrimination cases.” Justice Ginsburg then answered Justice Scalia’s question more directly, defending the outcomes of the cases she litigated to establish that empirical evidence about average sex differences could not control individual cases:
“In all cases, it is true in general, but there are people who don’t fit the mold. So a stereotype is true for maybe the majority of cases. It just means that you say: This is the way women are, this is the way men are.”
This is a classic statement of the “unfair generalizations” view of sex discrimination. In her critique of this approach, Catharine MacKinnon has suggested a more nuanced taxonomy of stereotypes:
“As an account of the injury of discrimination, this notion of misrepresentation by generalization is certainly partial, limited, can be trivializing and even perverse. What if the stereotype—such as women enjoy rape—is not really true of anyone? What if, to the extent a stereotype is accurate, it is a product of abuse, like passivity, or a survival strategy, like manipulativeness? What if, to the degree it is real, it signals an imposed reality, like a woman’s place is in the home? What if the stereotype is ideologically injurious but materially helpful, like maternal preference in child custody cases? What if a stereotype is injurious as a basis for policy whether or not accurate, such as the view that women are not interested in jobs with higher salaries? Further, why is it an injury to be considered a member of a group of which one is, in fact, a member? Is the injury perhaps more how that group is actually treated?”
(100 Yale L.J. 1281, 1293)