In case you needed any proof, here's an example of the many dilemmas faced by schools trying to comply with Title IX. When the University of California cut 5 varsity teams last year, it was no longer in compliance with the federal law. In order to fall into compliance once again, it appears that their only option will be to add 50 spots for women while cutting 80 spots for men. Fair? That's not for me to decide. I don't even think that's the most interesting aspect of this debate.
Rather, imagine a world where the Equal Rights Amendment had become the law of the land. Under section 1 of the Amendment, "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." To some, the text is clear enough. To which I say, be careful what you wish for.
Passage of the ERA would mean that sex would achieve "strict scrutiny status," the way Justice Brennan had argued within the Court in Craig v. Boren. Brennan lost the fight, of course, and had to settle instead for intermediate scrutiny. But if the Supreme Court's race jurisprudence serves as guide, it cannot be said that passage of the ERA is a good thing. For, once gender became subject to strict scrutiny, that would essentially mean that men aggrieved by the law would have a claim in federal law to strike down Title IX. Worse yet, it may be said that Title IX and its rigid quota system sends demeaning messages to all about women, that is, it "reinforces the perception" that women cannot compete with men in the sports world.
In other words, if the use of race by state actors must be justified by a compelling state interest (a rare justification according to conservatives on the Court), I suspect that justifying the use of gender on similar grounds might prove just as difficult.
So here is what we have: passage of the ERA would mean that gender must be essentially removed as a category, even if those who use it assure us that they are trying to support the cause of gender equality.
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