Congress Paper Abstract

The Constitution of Sex and the Sex of the (U.S.) Constitution

DAVID B. CRUZ , Professor of Law, University of Southern California Law School

U.S. courts subject governmental discrimination to levels of scrutiny depending on the basis of discrimination. Race-based discrimination is subject to strict scrutiny; sex-based discrimination, intermediate scrutiny; and the default, in the absence of some suspect or quasi-suspect classification, rational basis review. Although disagreements about the contours of the tiers of review persist, the basic framework is widely understood by legal actors.

But what of legal disputes over the seemingly anterior question of the sex to be assigned to persons whose rights depend upon whether they are deemed male or female? May states adopt whatever definitions of sex they wish? Or does the Equal Protection Clause constrain their choice of sex definitions?

This paper examines the conception of sex generally adopted by the U.S. legal system and, I argue, in part constructed by it. Constitutional and other legal decisions not only reflect a contested definition of sex; they affirmatively constitute sex as binary, immutable, and consequential. Yet if the U.S. Constitution is to give substance to its fundamental, political conceptualization of the polity as free and equal persons and citizens, the Constitution must be interpreted to preclude government from adopting sex definitions that could underwrite the kinds of threats to liberty and equality posed by the insistence that biology equals destiny or that the People are exhaustively divisible into mutually exclusive kinds.

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