Sex Equality’s Irreconcilable Differences

Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2245 (2022).

Beatie v. Beatie, 333 P.3d 754, 755 (Ariz. Ct. App. 2014) (holding that a man did not lose his “male” legal status after giving birth to his three children).

Nguyen v. INS, 533 U.S. 53, 62-64 (2001) (upholding sex discrimination in federal immigration law against a sex-stereotyping challenge under the Fifth Amendment’s Equal Protection Clause by appealing to the fact that only women get pregnant and bear children).

Kiviti v. Pompeo, 467 F. Supp. 3d 293, 306-08 (D. Md. 2020) (recognizing that a child can be “born . . . of” same-sex parents through alternative reproduction for the purpose of a federal immigration law requiring that a child born overseas must be “born . . . of” married, citizen parents for U.S. citizenship to attach); Mize v. Pompeo, 482 F. Supp. 3d 1317, 1332 (N.D. Ga. 2020) (same).

Free the Nipple—Springfield Residents Promoting Equal. v. City of Springfield, No. 15-3467-CV-S, 2017 WL 6815041, at *1-2 (W.D. Mo. Oct. 4, 2017) (upholding a law that defined indecent exposure to include “exposure of . . . the female breast with less than a fully opaque covering of any part of the areola or nipple,” by reasoning, in part, that “there is no denying that men’s and women’s breasts are different”).

Corbitt v. Taylor, 513 F. Supp. 3d 1309, 1312 (M.D. Ala. 2021) (holding that it is illegal sex discrimination under the Equal Protection Clause to require an individual to get certain body parts (or lose certain body parts) in order to change their legal sex on a driver’s license).

See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2245-46 (2022), overruling Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). Dobbs primarily focused on why abortion was not constitutionally protected as a matter of due process and therefore why restrictive abortion laws were subject to rational-basis review only. But in a brief paragraph, Dobbs dispensed with other arguments for the abortion right, including equality arguments that have informed constitutional analysis of the abortion right since Roe v. Wade in 1973, see Reva B. Siegel, Sex Equality Arguments for Reproductive Rights: Their Critical Basis and Evolving Constitutional Expression, 56 Emory L.J. 815, 823 (2007), and which were made to the Court in Dobbs, see Brief of Equal Protection Constitutional Law Scholars Serena Mayeri, Melissa Murray & Reva B. Siegel as Amici Curiae in Support of Respondents at 1-5, Dobbs, 142 S. Ct. 2228 (No. 19-1392), which argued that abortion is protected as a matter of constitutional equality and that the criminal abortion law at issue in Dobbs was motivated by illicit sex stereotypes about women and mothers.

See Dobbs, 142 S. Ct. at 2245-46.

Id. (quoting Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974)).

In actuality, of course, Justice Alito did not even say that, reducing “women” to the “one sex” that can have abortions. Id.

See id. at 2246, 2283. The Court upheld the criminal abortion law at issue under rational-basis review based on the State’s “legitimate reasons” and indicated that “legitimate interests include respect for and preservation of prenatal life at all stages of development”; “protection of maternal health and safety”; “the elimination of particularly gruesome or barbaric medical procedures”; “the preservation of the integrity of the medical profession”; “the mitigation of fetal pain”; and “the prevention of discrimination on the basis of race, sex, or disability.” Id. at 2283-84.

See Craig v. Boren, 429 U.S. 190, 197 (1976) (“To withstand constitutional challenge, . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”); United States v. Virginia, 518 U.S. 515, 531 (1996) (“Parties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action.” (quoting J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994))).

Dobbs held that heightened judicial review would only apply to abortion classifications if challengers could provide evidence of “invidious discrimination.” 142 S. Ct. at 2246. However, in sex-discrimination cases, it is the moving parts of heightened review itself that helps reveal invidious discrimination. See, e.g., Craig, 429 U.S. at 204 (holding that sex discrimination in a drinking age law “invidiously discriminates against males” because the relationship between the law and the reasons for it was “far too tenuous to . . . be substantially related to achievement of the statutory objective,” as heightened judicial review for sex classifications demands).

Dobbs, 142 S. Ct. at 2245 (referring to regulations of characteristics distinctive of “one sex” as “not . . . sex-based classification[s]” under the Equal Protection Clause). While Dobbs cited to footnote 20 from Geduldig v. Aiello, 417 U.S. 484, 496 (1974), in support of that proposition, footnote 20 never said that regulations of characteristics unique to one sex were nonsex regulations within the meaning of the Equal Protection Clause. The footnote states, in part, that “[w]hile it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification . . . [given that n]ormal pregnancy is an objectively identifiable physical condition with unique characteristics.” Geduldig, 417 U.S. at 496 n.20. What Geduldig meant by “unique characteristics” is unclear. The State of California’s brief in Geduldig made a variety of uniqueness claims, including that pregnancy was “unique” compared to other medical conditions because “unlike illness or injury, pregnancy and childbirth are often viewed by women employees as a logical point at which to terminate their jobs”; that pregnancy, unlike sickness, is a “normal biologic function”; that pregnancy, unlike sickness, is “desirable” or voluntary; and that pregnancy is a “unique female condition” because only women get pregnant. See Brief for Appellant at 18-23, Geduldig, 417 U.S. 484 (No. 73-640), 1974 WL 185750. The footnote itself didn’t explicitly endorse any one of those uniqueness arguments. Nor has the Court clarified what Geduldig meant by “uniqueness” in the few decisions—seventeen—in which it has cited to Geduldig since 1974. See, e.g., Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 271 (1993) (citing to Geduldig simply for the proposition that “to disfavor [abortion] is [not] ipso facto to discriminate invidiously against women as a class”); see also id. at 327 (Brennan, J., dissenting) (“Geduldig, of course, did not purport to establish that, as a matter of logic, a classification based on pregnancy is gender-neutral.”). Some commentators have interpreted footnote 20 as standing for the proposition that Dobbs endorsed, namely, that pregnancy and abortion classifications were sex neutral because pregnancy and abortion only affected women. See, e.g., Katharine T. Bartlett, Pregnancy and the Constitution: The Uniqueness Trap, 62 Calif. L. Rev. 1532 (1972); Linda Greenhouse, Justice Alito’s Invisible Women, N.Y. Times (May 5, 2022), https:‌//‌www‌.nytimes‌.com‌/2022‌/05‌/05‌/opinion‌/abortion‌-alito‌-discrimination‌.html [https:‌//‌perma‌.cc‌/BC7G‌-J6KU] (“Geduldig v. Aiello . . . held in 1974 that because pregnancy is a condition unique to women, a state could withhold equal benefits from pregnant women without violating the Equal Protection Clause.”).

See, e.g., Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1 (1995); Reva B. Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261 (1992); Cary Franklin, Biological Warfare: Constitutional Conflict over “Inherent Differences” Between the Sexes, 2017 Sup. Ct. Rev. 169; Douglas NeJaime, Bigotry in Time: Race, Sexual Orientation, and Gender, 99 B.U. L. Rev. 2651 (2019) [hereinafter NeJaime, Bigotry in Time]; Douglas NeJaime, Marriage, Biology, and Gender, 98 Iowa L. Rev. Bull. 83 (2013) [hereinafter NeJaime, Marriage, Biology, and Gender].

On sex equality’s anti-stereotyping principle, see Mary Anne Case, “The Very Stereotype the Law Condemns”: Constitutional Sex Discrimination as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1449 (2000), which argues that sex stereotypes are never justifiable under intermediate scrutiny, the level of judicial review reserved for sex classifications; David H. Gans, Stereotyping and Difference: Planned Parenthood v. Casey and the Future of Sex Discrimination Law, 104 Yale L.J. 1875, 1876 (1995), which observes that “[s]tereotyping is the central evil that the Court’s equal protection doctrine seeks to prevent”; and Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 83-91 (2010), which traces the evolution of the anti-stereotyping principle in constitutional law.

See Virginia, 518 U.S. at 550 (“[G]eneralizations about ‘the way women are’ . . . no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”).

See Nguyen v. INS, 533 U.S. 53, 61 (2001) (holding that sex discrimination in federal immigration law is a constitutionally permissible reflection of the fact that only women get pregnant and give birth).

See Tagami v. City of Chicago, 875 F.3d 375, 380, 382 (7th Cir. 2017) (upholding a sex-discriminatory breast-exposure criminal law that Chicago argued was “wholly attributable to the basic physiological differences” between “female breasts” and “male breasts,” not to gross generalizations about women, modesty, and femininity).

See, e.g., State v. Wright, 563 S.E.2d 311, 315 (S.C. 2002) (holding that the aggravating circumstance of a “difference in the sexes” in the offense of criminal domestic violence was not an illegal sex stereotype under the Equal Protection Clause because “it is a matter of common knowledge, and a proper subject for judicial notice, that women, as a general rule, are of smaller physical stature and strength than are men” (quoting Buchanan v. State, 480 S.W.2d 207, 209 (Tex. Crim. App. 1972))).

See DuPont v. Comm’r of Corr., 861 N.E.2d 744, 753 (Mass. 2007) (holding that a prison regulation requiring male prisoners to be in special detention for certain in-prison offenses but exempting female prisoners who commit those same in-prison offenses was not impermissible sex discrimination because male inmates have a greater propensity for violence than female inmates).

See, e.g., Bauer v. Lynch, 812 F.3d 340, 350 (4th Cir. 2016) (holding that a gender-normed physical-fitness test, which required different levels of physical fitness for male and female applicants for a position within the Federal Bureau of Investigation (FBI), was not a sex classification because of “physiological differences between the sexes”); Clark v. Ariz. Interscholastic Ass’n, 695 F.2d 1126, 1131 (9th Cir. 1982) (upholding a school’s rejection of a male student’s request to compete on the female volleyball team given that “there is no question that the Supreme Court allows for . . . average real differences between the sexes to be recognized [and] . . . they allow gender to be used as a proxy in this sense if it is an accurate proxy”). But see Case, supra note 16, at 1449-50 (observing that “the assumption at the root of the sex-respecting rule must be true of either all women or no women or all men or no men; there must be a zero or a hundred on one side of the sex equation or the other”).

See In re Adoption of J.S., 358 P.3d 1009, 1030-31 (Utah 2014) (stating that an unwed mother’s connection to her child is objectively established by her decision “to carry the child to term,” whereas “[a]n unwed father’s role is inherently different”); In re Adoption of A.K.O., 250 So. 3d 1097, 1099 (La. Ct. App. 2018) (Moore, J., concurring) (quoting In re Adoption of J.S. in stating that “[a]n unwed mother’s connection to her child is objectively apparent,” whereas an unwed father’s connection is “inherently different”).

Stennett v. Miller, 245 Cal. Rptr. 3d 872, 890 (Ct. App. 2019) (“The mother carries the baby to term and gives birth; the father does not. Only a mother’s parental relationship is established at birth.”).

For the law’s differential treatment of fathers and mothers during pregnancy because of real differences, see David Fontana & Naomi Schoenbaum, Unsexing Pregnancy, 119 Colum. L. Rev. 309, 311-12 (2019), which argues that “the Supreme Court has decided that pregnancy is an event almost exclusively for women and has therefore assumed that caregiving during pregnancy is almost exclusively for women too.” For the law’s differential treatment of fathers and mothers after pregnancy because of real differences, see, for example, Grimes v. Van Hook-Williams, 839 N.W.2d 237, 245 (Mich. Ct. App. 2013), in which the court concluded that a mother’s care work “during the infant’s first weeks of life” is the product of “genuinely differentiating characteristics” between mothers and fathers.

See NeJaime, Bigotry in Time, supra note 15, at 2652-54 (observing that courts do not condemn judgments about sex differences as bigoted in the same way that they would condemn judgments about race differences as bigoted).

Eline v. Town of Ocean City, 452 F. Supp. 3d 270, 281 (D. Md. 2020) (making this distinction when upholding a sex-discriminatory criminal breast law against a sex-stereotyping challenge (emphasis added)).

See, e.g., Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955) (upholding Virginia’s criminal antimiscegenation law, in part, by finding that Virginia’s interests in preventing the “corruption of blood,” in preserving “the racial integrity of its citizens,” and in preventing “a mongrel breed of citizens” were legitimate under the Constitution); Scott v. State, 39 Ga. 321, 323 (1869) (“The amalgamation of the races is not only unnatural, but is always productive of deplorable results. Our daily observation shows us, that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength, to the full-blood of either race.”); State v. Jackson, 80 Mo. 175, 179 (1883) (stating that it is “a well authenticated fact that if . . . a black man and a white woman, and a white man and a black woman, intermarry, they cannot possibly have any progeny,” and that “such a fact” justifies civil and criminal bans on “the intermarriage of blacks and whites”); Plessy v. Ferguson, 163 U.S. 537, 551 (1896) (upholding a criminal Jim Crow law, in part, by reasoning that “[l]egislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation”), overruled by Brown v. Bd. of Educ., 347 U.S. 483 (1954).

See, e.g., Loving v. Virginia, 388 U.S. 1, 11-12 (1967) (characterizing Virginia’s reasons for criminalizing interracial relationships, including its biological reasons for doing so, as unconstitutional expressions of White Supremacy).

See, e.g., United States v. Virginia, 518 U.S. 515, 550 n.19 (1996) (suggesting that physiological justifications were sometimes a constitutionally permissible reason to discriminate on the basis of sex but rejecting the physiological justification for sex discrimination in that case); Sessions v. Morales-Santana, 137 S. Ct. 1678, 1694 (2017) (striking down a sex classification similar to the one at issue in Nguyen on sex-stereotyping grounds but leaving undisturbed Nguyen’s basic insights on pregnancy and birth).

Virginia, 518 U.S. at 550 (defining stereotypes as “generalizations about ‘the way women are,’ [and] estimates of what is appropriate for most women”).

Nev. Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721, 736 (2003) (observing that employers engage in illegal sex stereotyping when they grant leave to new mothers but not to new fathers even when mothers and fathers are equally capable of caring for children).

Virginia, 518 U.S. at 550 (defining sex stereotypes as “estimates of what is appropriate for most women”); idat 517 (holding that the “constitutional violation in this case is the categorical exclusion of women, in disregard of their individual merit, from an extraordinary educational opportunity afforded men”); City of Los Angeles v. Manhart, 435 U.S. 702, 702-03 (1978) (holding that an illegal sex stereotype under federal antidiscrimination law is a law or policy that overlooks individual differences, including individual differences that are true in the aggregate); Manhart, 435 U.S. at 708 (“Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.”).

Sessions, 137 S. Ct. at 1692 (“The classification must substantially serve an important governmental interest today, for ‘new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.’” (quoting Obergefell v. Hodges, 576 U.S. 644, 673 (2015))).

For example, real-differences arguments for sex discrimination and sex separatism overgeneralize about male and female bodies and their capabilities. See, e.g., Clark v. Ariz. Interscholastic Ass’n, 695 F.2d 1126, 1131 (9th Cir. 1982) (upholding the exclusion of males from a female volleyball team based on “average physiological differences” between men and women, even though the anti-stereotyping principle condemns sex classifications rooted in averages). Moreover, real-differences arguments treat men and women as different when they are, in fact, similarly situated. See, e.g., Fontana & Schoenbaum, supra note 25, at 311-12 (arguing that “the Supreme Court has decided that pregnancy is an event almost exclusively for women and has therefore assumed that caregiving during pregnancy is almost exclusively for women too,” even though expectant fathers are fully capable of doing that work (emphasis added)). Likewise, real-differences arguments for sex discrimination ignore exceptional cases. See, e.g., Nguyen v. INS, 533 U.S. 53, 53-54 (2001) (rejecting an unwed father’s sex-discrimination claim by reasoning that most fathers’ biological and social connections to their children were unclear, despite the fact that Joseph Boulais, the father in Nguyen, was his son’s primary caretaker and had a DNA test confirming his paternity). For a critique of Nguyen’s abandonment of the anti-stereotyping principle’s individualist focus, see Kenji Yoshino, Sex Equality’s Inner Frontier: The Case of Same-Sex Marriage, 122 Yale L.J.F. 275, 277-78 (2013), which argues that the reasoning in Nguyen “problematically ignores the Court’s prior analysis [in United States v. Virginia]” because it overlooks the fact that “if even one man were capable of meeting the [government’s] standards of conferring automatic citizenship (i.e., knowing and bonding with his child), then no man should be denied the opportunity to do so.” Finally, real-differences arguments look to tradition to determine whether a sex distinction is legal today. See, e.g., State v. Lilley, 204 A.3d 198, 208 (N.H. 2019) (upholding a criminal topless ban against a sex-stereotyping challenge by reasoning that “men and women are not fungible with respect to the traditional understanding of what constitutes nudity” (emphasis added)).

See, e.g., Siegel, supra note 15, at 271-72 (“The naturalistic framework in which the Court reasons about reproductive regulation obscures questions concerning its normative content that would be the central focus of doctrinal inquiry if the Court recognized that reproductive regulation concerned matters of gender, and not merely physiological sex.”).

Nguyen, 533 U.S. at 62-63.

See Mississippi v. Hogan, 458 U.S. 718, 730 (1982) (rejecting the categorical exclusion of men from a state nursing program on sex-stereotyping grounds and reasoning that the school’s “admissions policy lends credibility to the old view that women, not men, should become nurses, and makes the assumption that nursing is a field for women a self-fulfilling prophecy”); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 139 n.11 (1994) (stating that constitutional sex equality prohibits state actors from relying on “overbroad” generalizations to make “judgments about people that are likely to . . . perpetuate patterns of discrimination”).

See Fontana & Schoenbaum, supra note 25, at 336-42 (cataloging these laws).

See id. at 313.

See infra notes 59-71 and accompanying text.

See, e.g., Tagami v. City of Chicago, 875 F.3d 375, 383 (7th Cir. 2017) (Rovner, J., dissenting) (arguing that criminal topless bans shape the way that we see and treat women).

See Franke, supra note 15, at 1-2 (arguing that sex equality’s acceptance of real biological difference as a valid basis for sex discrimination “explains why sex discrimination laws have been relatively ineffective in dismantling profound sex segregation in the labor market, in shattering ‘glass ceilings’ that obstruct women’s entrance into the upper echelons of corporate management, and in increasing women’s wages, which remain a fraction of those paid men” (footnotes omitted)).

See, e.g., Sommers v. Budget Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982) (rejecting a transgender employee’s sex-discrimination claim under Title VII in part because it was unclear medically whether the plaintiff “is properly classified as male or female”); Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1087 (7th Cir. 1984) (denying a transgender employee’s sex-discrimination claim under Title VII in part because Title VII protected men and women and plaintiff was neither, and questioning whether “a woman can be so easily created from what remains of a man”).

See, e.g., Littleton v. Prange, 9 S.W.3d 223, 224, 231 (Tex. App. 1999) (ruling that Texas did not recognize legal-sex changes because biological sex was “immutably fixed by [the] Creator at birth”).

See, e.g., Singer v. Hara, 522 P.2d 1187, 1189, 1195 (Wash. Ct. App. 1974) (ruling that a same-sex marriage prohibition was not unconstitutional sex discrimination because marriage is “the appropriate and desirable forum for procreation and the rearing of children”).

See Beatie v. Beatie, 333 P.3d 754, 760-61 (Ariz. Ct. App. 2014) (holding that a man did not lose his “male” legal status after giving birth to his three children).

See, e.g., Mize v. Pompeo, 482 F. Supp. 3d 1317, 1336 (N.D. Ga. 2020) (holding that a child born overseas to two married men, both U.S. citizens, could be “born . . . of” them under a federal law extending U.S. citizenship to children born overseas to married U.S. citizens); Kiviti v. Pompeo, 467 F. Supp. 3d 293, 307-08 (D. Md. 2020) (same).

See, e.g., Zzyym v. Pompeo, 958 F.3d 1014, 1017-18 (10th Cir. 2020); see also Colleen Slevin, United States Issues Its 1st Passport with ‘X’ Gender Marker, Associated Press (Oct. 27, 2021), https:‌//‌apnews‌.com‌/article‌/us‌-passports‌-x‌-gender‌-designation‌-2c29e18fc6566d549‌b9a06fd‌a0857602 [https:‌//‌perma‌.cc‌/6B38‌-QQJD] (announcing that the United States has begun to issue passports with a gender “X” designation).

See, e.g., M.A.B. v. Bd. of Educ. of Talbot Cnty., 286 F. Supp. 3d 704, 715 (D. Md. 2018) (rejecting a school board’s contention that transgender discrimination “based on biology alone” was not an illegal sex stereotype and reasoning that such an argument “is unavailing because [it] define[s] gender stereotyping too narrowly” (emphasis added)). The Supreme Court has never definitively said that discrimination based on biology per se is a sex stereotype. Of course, there are decisions that gesture in that direction. See, e.g., United States v. Virginia, 518 U.S. 515, 533-34 (1996) (rejecting the State’s contention that barring women from a military academy was not a sex stereotype because no woman could satisfy the academy’s physical demands, and reasoning that if even one woman were capable of satisfying those demands, then it was a sex stereotype to exclude her); Nev. Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721, 738-40 (2003) (recognizing that “state practices [that] continue to reinforce the stereotype of women as caregivers” once pregnancy ends—including policies denying employment leave for new fathers—violated the Constitution’s Equal Protection Clause). However, neither Virginia nor Hibbs fully endorsed the idea that sex difference is as socially constructed as race difference. Hibbs was limited to sex discrimination after the biological process of pregnancy was over. Moreover, only five years after Virginia, the Supreme Court said in Nguyen v. INS that ignoring real differences between the sexes would offend constitutional sex equality. See 533 U.S. 53, 73 (2001). Since Nguyen was decided in 2001, dozens of lower and state courts have relied on it—and on real-differences justifications more generally—to uphold sex distinctions, even when those distinctions violate the anti-stereotyping principle’s condemnation of gross generalizations that neglect individual or exceptional cases. See, e.g., Courtney Megan Cahill, The New Maternity, 133 Harv. L. Rev. 2221, 2223-24 (2020) (collecting these cases); Kristin A. Collins, Equality, Sovereignty, and the Family in Morales-Santana, 131 Harv. L. Rev. 170, 195 (2017) (“Nguyen became a resource for lawyers defending the gender-based regulation of parentage and, more generally, the family.”).

A school board repeatedly made this argument during the five-year Grimm v. Gloucester County School Board litigation. See, e.g., Brief in Support of Motion to Dismiss Amended Complaint at 20, Grimm v. Gloucester Cnty. Sch. Bd., 400 F. Supp. 3d 444 (E.D. Va. 2019) (No. 15-cv-54), 2017 WL 11408395 (arguing that a policy prohibiting a transgender boy from using the men’s restroom was not sex stereotyping under Title IX because “the policy designates multiple-stall restrooms and locker rooms based on physiology, period—regardless of how ‘masculine’ or ‘feminine’ a boy or girl looks, acts, talks, dresses, or styles their hair”); id. (arguing that “it makes no sense to say that distinguishing boys from girls on the basis of physiological or anatomical characteristics amounts to prohibited sex ‘stereotyping’”); Brief in Support of Amended Motion to Dismiss Amended Complaint at 21-22, Grimm, 400 F. Supp. 3d 444 (No. 15-cv-54), 2018 WL 9458271 (same); Brief in Support of Gloucester County School Board’s Motion for Summary Judgment at 25, Grimm, 400 F. Supp. 3d 444 (No. 15-cv-54), 2019 WL 4061215 (same).

See, e.g., Brief in Support of Motion to Dismiss Amended Complaint, supra note 51, at 19 (relying on Supreme Court decisions addressing real differences for the proposition that “[p]hysiological differences between men and women are real ones” and that laws based on those differences are constitutional).

See, e.g., Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 618-19 (4th Cir. 2020) (holding that transgender bathroom assignments are illegal sex stereotypes under Title IX because they “rely on [a school’s] own discriminatory notions of what ‘sex’ means”); idat 609-10 (reasoning that biologically rationalized transgender discrimination in bathroom access was an illegal sex stereotype because it relied on “overbroad generalizations” about the sexes and “stereotypic notions” of the fixed roles of men and women).

M.A.B., 286 F. Supp. 3d at 715.

Franklin, supra note 16, at 163 (quoting Martha Shelley, Gay Is Good, Rat (Feb. 24, 1970), reprinted in Out of the Closets: Voices of Gay Liberation 31, 32 (Karla Jay & Allen Young eds., 1972)).

Id. at 118.

140 S. Ct. 1731, 1741-43 (2020).

See, e.g., Rouch World, LLC v. Dep’t of C.R., No. 162482, 2022 WL 3007805, at *11, *15 (Mich. July 28, 2022) (holding that discrimination on the basis of sexual orientation was illegal sex discrimination under a state public-accommodation law and relying on Bostock in support of that holding); Hobby Lobby Stores, Inc. v. Sommerville, 186 N.E.3d 67, 82 (Ill. App. Ct. 2021) (citing Bostock in holding that transgender discrimination is illegal sex discrimination under state employment and public-accommodations laws); N.H. v. Anoka-Hennepin Sch. Dist. No. 11, 950 N.W.2d 553, 570, 572 (Minn. Ct. App. 2020) (relying on Bostock to hold that transgender discrimination is illegal sex discrimination under the Minnesota constitution). In addition, President Biden appealed to Bostock in his sweeping executive order declaring LGBTQ discrimination to be illegal sex discrimination under federal law. See Exec. Order No. 13,988, 86 Fed. Reg. 7023 (Jan. 20, 2021).

For example, a Gainesville, Florida, public-nudity law provides that it is “unlawful for any person to knowingly, intentionally, or recklessly appear, or cause another person to appear, nude in a public place or in any other place which is readily visible to the public,” defines nudity differently for men and women, and defines “person” as “[a]ny live human being aged ten (10) years of age or older.” Gainesville, Fla., Ordinances ch. 17, § 13 (2022). The Gainesville City Commission recently considered repealing this portion of its public-nudity law as part of a larger effort to replace all gender-specific terms in the city code with gender-neutral terms. The larger effort to gender-neutralize the city code succeeded—but not with respect to the public-nudity statute. See infra notes 379-384 and accompanying text.

See, e.g., Eline v. Town of Ocean City, 7 F.4th 214, 221, 224 (4th Cir. 2021); State v. Lilley, 204 A.3d 198, 216-17 (N.H. 2019).

See, e.g., City of Jackson v. Lakeland Lounge, 688 So.2d 742, 743 (Miss. 1996).

See, e.g., City of Seattle v. Buchanan, 584 P.2d 918, 918-19 (Wash. 1978).

See, e.g., Gainesville, Fla., Ordinances ch. 17, § 13 (2022).

See Utah v. Buchanan, Civ. No. 191901507, at 14 (Utah Dist. Ct. Jan. 19, 2020) (upholding criminal lewdness conviction of a woman who was topless in front of her stepchildren, in part by rationalizing sex distinction in criminal lewdness law as a reflection of real biological differences between female and male breasts). For a collection of criminal topless laws, see Courtney Megan Cahill, Equality or Bust (unpublished manuscript) (on file with author), which collects and catalogues these laws. In 2020, Utah resident Tilli Buchanan was charged with “lewdness involving a minor” after her stepchildren saw her and her husband bare-chested before entering the shower. With the help of the ACLU, Buchanan challenged the law under which she was charged on constitutional sex-equality grounds, arguing that it violated the Equal Protection Clause’s command that similarly situated individuals, like Buchanan and her husband, be treated the same. The trial court rejected her argument, reasoning that the challenged law was “rooted in physical differences between the sexes” and “reflect[ed] contemporary community standards regarding nudity.” See, e.g., Buchanan, Civ. No. 191901507, at 13. Rather than take her case further, Buchanan took a deal under which she admitted to being topless in front of her stepchildren and paid a six-hundred-dollar fine in return for avoiding the most severe consequences of her offense, including a one-year jail sentence and mandatory sex-offender registration. See Maria Cramer, Utah Judge Rules Against Woman Who Was Topless in Her Own Garage, N.Y. Times (July 10, 2020), https:‌//‌www‌.nytimes‌.com‌/2020‌/01‌/22‌/us‌/tilli‌-buchanan‌-topless‌-utah‌.html [https:‌//‌perma‌.cc‌/LK5N‌-RAPT].

Tagami v. City of Chicago, 875 F.3d 375, 380 (7th Cir. 2017).

Id. at 380 (quoting United States v. Virginia, 518 U.S. 515, 533 (1996)).

For state and federal courts that have upheld the constitutionality of female-only topless bans, typically on some combination of real differences and morality, see Eline v. Town of Ocean City, 7 F.4th 214, 221 (4th Cir. 2021); State v. Lilley, 204 A.3d 198 (N.H. 2019); Free the Nipple—Springfield Residents Promoting Equality v. City of Springfield, 923 F.3d 508 (8th Cir. 2019); Ways v. City of Lincoln, 331 F.2d 596 (8th Cir. 2003); State v. Vogt, 775 A.2d 551 (N.J. Super. Ct. App. Div. 2001); Buzzetti v. City of New York, 140 F.3d 134 (2d Cir. 1998); City of Tucson v. Wolfe, 917 P.2d 706 (Ariz. Ct. App. 1995); Schleuter v. City of Fort Worth, 947 S.W.2d 920 (Tex. App. 1997); Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1256 (5th Cir. 1995); J & B Soc. Club #1 Inc. v. City of Mobile, 966 F. Supp. 1131 (S.D. Ala. 1996); United States v. Biocic, 928 F.2d 112 (4th Cir. 1991); Craft v. Hodel, 683 F. Supp. 289 (D. Mass. 1988); City of Seattle v. Buchanan, 584 P.2d 918 (Wash. 1978) (en banc); Eckl v. Davis, 124 Cal. Rptr. 685 (Ct. App. 1975); State v. Turner, 382 N.W.2d 252, 256 (Minn. Ct. App. 1986); City of Albuquerque v. Sachs, 92 P.3d 24 (N.M. Ct. App. 2004); City of Jackson v. Lakeland Lounge, 688 So.2d 742 (Miss. 1996); and MJR’s Fare of Dallas v. City of Dallas, 792 S.W.2d 569, 575 (Tex. App. 1990). For an example of where a court struck down a female-only topless ban on constitutional-equality grounds, see Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792, 807 (10th Cir. 2019).

Vogt, 775 A.2d at 558 (recognizing that “the size of the [female] breast exposed” partially accounts for the “male-female distinction” in a criminal topless ban, even while also recognizing that “one could infer from the photographs admitted at trial some men are more full breasted than some women”).

MJR’s Fare of Dallas, 792 S.W.2d at 575.

Buchanan, 584 P.2d at 920-22 (upholding a criminal topless ordinance against a sex-discrimination challenge by reasoning that the ordinance “applie[d] alike to men and women, requiring both to cover those parts of their bodies which are intimately associated with the procreation function”). Clearly, breasts themselves do not serve a “procreative function,” even if they are used after procreation to nourish an infant.

See, e.g., Free the Nipple—Fort Collins v. City of Fort Collins, 237 F. Supp. 3d 1126, 1130, 1132 (D. Colo. 2017) (stating that “the most obvious difference is that female breasts have the potential to nourish children, whereas male breasts do not” and recognizing that laws based on real differences are constitutional so long as they do not express outmoded sex stereotypes), aff’d, 916 F.3d 792 (10th Cir. 2019).

Ray Duval & Arli Christian, Congratulations, Illinois! A New Law Improves Access to Accurate Birth Certificates, Nat’l Ctr. for Transgender Equal. (Sept. 1, 2017), https:‌//‌medium‌.com‌/transequalitynow‌/congratulations‌-illinois‌-a‌-new‌-law‌-improves‌-access‌-to‌-accurate‌-birth‌-certificates‌-631a718e952d [https:‌//‌perma‌.cc‌/W8TL‌-B9JR] (discussing HB 1785, which revises the Illinois Vital Records Act to allow transgender and intersex people to update their birth certificates without surgery).

See infra notes 229-230 and accompanying text (listing these states).

See infra notes 229-250 and accompanying text.

Corbitt v. Taylor, 513 F. Supp. 3d 1309, 1315 (M.D. Ala. 2021).

Id. at 1315-17 (quoting Sessions v. Morales-Santana, 137 S. Ct. 1678, 1684 (2017)).

See Defendants’ Brief in Support of Their Motion for Summary Judgment at 45, Corbitt, 513 F. Supp. 3d 1309 (No. 18-cv-91), 2019 WL 690376.

See, e.g., Eline v. Town of Ocean City, 382 F. Supp. 3d 386, 388-89 (D. Md. 2018) (quoting the topless law’s “legislative findings” that there is an “indisputable difference” between male and female breasts and that “[t]he equal protection clause does not demand that things that are different in fact be treated the same in law, nor that a government pretend there are no physiological differences between men and women”).

Sex stereotypes include gross generalizations about how women and men are as well as gross generalizations about how women and men should be. Zarda v. Altitude Express, Inc., 883 F.3d 100, 119 (2d Cir. 2018) (stating that sex stereotypes include judgments about “both how the sexes are and how they should be”).

To be clear, court decisions about topless bans often acknowledge that these laws police women. But they justify that policing by relating it back to physical differences, reasoning that society sexualizes women’s breasts only because women’s breasts look different (or in some cases, function differently) from men’s breasts—not because society wants to sexualize women, control women, mark them as other, or keep them down. In this sense, criminal breast laws (and jurisprudence) track other real-differences arguments, which immunize otherwise unconstitutional social judgments about men and women by adorning them in the patois of biology. See generally Siegel, supra note 15 (finding that the Court’s framing of reproductive regulation as being grounded in biological differences between the sexes obscures the reality that such regulation may be informed by constitutionally illicit judgements about women); NeJaime, Marriage, Biology, and Gender, supra note 15, at 92 (arguing that biological preferentialism functions to preserve normative arguments about sex rules in the parenting context).

See Kate Manne, Down Girl: The Logic of Misogyny 13 (2017) (describing misogyny as the policing arm of sexism).

See, e.g., Judith Butler, Gender Trouble: Feminism and the Subversion of Identity 9 (1990) (suggesting that “perhaps this construct called ‘sex’ is as culturally constructed as gender; indeed, perhaps it was always already gender with the consequence that the distinction between sex and gender turns out to be no distinction at all”); Jules Gleeson, Judith Butler: ‘We Need to Rethink the Category of Woman,’ Guardian (Sept. 7, 2021, 6:14 AM EDT), https:‌//‌www‌.theguardian‌.com‌/lifeandstyle‌/2021‌/sep‌/07‌/judith‌-butler‌-interview‌-gender [https:‌//‌perma‌.cc‌/P8J2‌-ZMQQ] (“Gender is an assignment that does not just happen once: it is ongoing. We are assigned a sex at birth and then a slew of expectations follow[s] which continue to ‘assign’ gender to us. The powers that do that are part of an apparatus of gender that assigns and reassigns norms to bodies, organises them socially, but also animates them in directions contrary to those norms.”); Judith Butler, Bodies that Matter: On the Discursive Limits of “Sex” 4-12 (1993); Marjorie Garber, Vested Interests: Cross-Dressing and Cultural Anxiety 47-51 (1992); Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality 4 (2000) (observing that “[o]ur bodies are too complex to provide clear-cut answers about sexual difference,” and that “[t]he more we look for a simple physical basis for ‘sex,’ the more it becomes clear that ‘sex’ is not a pure physical category”); Anne Fausto-Sterling, Myths of Gender: Biological Theories About Women and Men 220-21 (1985) (“Any biological theory about human behavior that ignores the complex of forces affecting behavior as well as the profound two-way interactions between mind and body is scientifically hopeless.”); Thomas Laqueur, Making Sex: Body and Gender from the Greeks to Freud 61-62 (1990); Shulamith Firestone, The Dialectic of Sex: The Case for Feminist Revolution 11 (1970) (arguing that “the end goal of feminist revolution must be . . . not just the elimination of male privilege but of the sex distinction itself”); Kate Millet, Sexual Politics: A Manifesto for Revolution, in Radical Feminism 365, 366 (Anne Koedt, Ellen Levine & Anita Rapone eds., 1973).

Franke, supra note 15, at 7.