Competing Justices: A Comment on Race and Gender Discrimination

Lane Feler

The Then

Fifty years ago, masses took to the streets to demand equal rights under law in this country, culminating in one of the most comprehensive statutory overhauls of U.S. history. The 1964 Civil Rights Act (CRA) represented a political moment, one of social inertia and progressive change. Moreover, it was an inclusive outcome, recognizing the many interwoven strands of discrimination; to root out discrimination entirely, the CRA was designed to attack from all sides, be it discrimination based upon race or sex. Fifty years have passed, but more keenly than ever do we see still-existent tears in the fabric of American society, even amongst those seeking to repair it. If we look closely at the history of the CRA, we can see the moment may continue on anomalously.

Alice Paul
Alice Paul

As lore would have it, the inclusion of the Sex Amendment to the CRA boiled down to a stab at political jettisoning; that is, certain Congressmen believed in earnest that adding “sex” to the protections of the Act would effectively bury it. While some parties certainly did—and continue—to believe this tale,[1] the Sex Amendment instead stands as testament to a long-fought battle by women such as Alice Paul, whose earliest claim to fame was her status as a militant suffragist of the Pankhurst ilk. As far as Paul was concerned, where the Equal Rights Amendment had failed, the CRA might succeed. Congressman Herbert Smith—a friend to Paul whose political interests conveniently lay in deregulating the female workforce—submitted the Sex Amendment. The rest, as they say, is history.

But, not quite history, because underlying the broader antidiscrimination project was a sentiment of what I will call “competing justices.” For some reason, antidiscrimination advocates believed basic rights and protections could only be granted to one class before the other; racism and sexism were not to be tackled simultaneously. We could postulate that there simply was not enough political capital to go around. However, this misses the real exclusionary mentality of the Civil Rights Movement.

To some extent, the convergence of the sex- and race-based stakeholders and the ultimate legislative success story was nothing short of miraculous. Menand tells us that as far back as 1869, Frederick Douglass objected to the idea that there might be “the same urgency in giving the ballot to woman as to the negro.”[2] Douglass denied that, by way of being women, “the second sex” would ever feel the same threat to security or depth of vitriol and degradation as by simply being Black. Of course, Susan B. Anthony then responded with a quip about the intelligence of Black Americans: “If you will not give the whole loaf of suffrage to the entire people, give it to the most intelligent first. If intelligence, justice, and morality are to have precedence in the Government, let the question of woman be brought up first and that of the negro last.”

CRA signing
The signing of the CRA. Hello, gentlemen!

Juxtapose Douglass’ denial, then, with Congresswoman Martha Griffiths’s response on the floor of the House to the open ridicule garnered by the Sex Amendment: “If there had been any necessity to have pointed out that women were a second-class sex . . . the laughter would have proved it.”[3] Griffiths could show not just belief, but proof. Despite deeply embedded skepticism, Congress enshrined “sex” protections in the CRA. Ultimately, women only had to convince Congress—not other antidiscrimination advocates—of the need.

The Now

The back-and-forth between sex- and race-based advocates unearths a policy of one before the other, laden with innuendo about the relative value of each class’s suffering. The high-stakes interest in civil rights protections led to a ranking of injustices, one that continues to be problematic.

One cannot deny that both race- and sex-based discrimination exist even to this day. But one can ask whether or not the nature of those two types of discrimination do manifest differently, and to a necessarily meaningful or even insurmountable degree. Then, whether this should result in solutions devised as if they are, indeed, so distinct.

It would be a mistake to consider that the divide dissolved after the passage of the Civil Rights Act. The divide lives on—immortalized, for one, in subsequent jurisprudence. If one does want to conceive of mid-20th century discrimination as creating some sort of structure ranking injustices, it has simply been inverted into the tiers of scrutiny.[4] Separate, but not equal.

The divide looms threateningly over intersectionality debates. The fundamental problem of being a racial minority as well as a woman, for example, underscores that discrimination generally is an ill; but the way it manifests towards minorities and women might be so different as to make an intersection of the two exponentially insupportable.[5] But in order to remedy some part of the harm, claimants must choose the “best fit” legal theory more in line with the divisive conception of discriminatory harm. This forced fit matters because we think of law as the most obvious means by which we can cure discriminatory behavior.

This habitual classification makes legal schemes inflexible and inoperable. What really becomes most clear from the intersectionality cases is that discrimination ultimately is personal and individual.[6] While it might be easy to lose oneself in the fray, the act of determining the many forms discrimination takes and which applies to a certain class, etc., ultimately loses sight of the goal. As jaded as we could become by this legal system, do we not strive for justice, end stop?

Right now, perhaps, is the time we most need to consider how we compartmentalize class-based discrimination, and how that should color our subsequent responses. Competing justices remain relevant as one scopes out the landscape of current, heated socio-legal issues. On the one hand, the year of 2014 might forever be remembered as the year of Ferguson and police brutality. On the other, national attention also turned to the problem of domestic violence[7] and on-campus sexual assault.[8] Both are forms of the worst kind of discrimination—the violent kind, which makes us question our fundamental security as we stroll the city streets or halls of our own homes. I have not once, in the public sphere, heard of the two discussed together as part of a broader agenda to eliminate discrimination. Still separate, still unequal, still competing.

Both areas are charged and ready for systemic progress, but remain un-unified and uncoordinated. They are viewed as distinct social ills, for distinct demographics. What is so stunning about the civil rights era is that in some appreciable way, a variety of stakeholders were able to converge ideologically and achieve on the books a measure of progress. Fifty years have passed, and there is still substantial work to do, especially outside of the courts. It is a political moment requiring social engagement. And I have to wonder—will the United States remain at a standstill until advocates merge the conversation? Could we once again desist in pursuing separate tracks, as if there is a different urgency accorded to different discriminations? I would hate to believe there are lesser and greater claims to justice.


[1] Indeed, even civil rights leaders themselves believed the “load would kill the piggy.” See Louis Menand, The Sex Amendment: How women got in on the Civil Rights Act, The New Yorker, July 21, 2014, available at http://www.newyorker.com/magazine/2014/07/21/sex-amendment.

[2] Id.

[3] Id. (internal citations omitted).

[4] Compare Loving v. Virginia, 388 U.S. 1 (1967) (applying strict scrutiny to race-based classifications), with Craig v. Boren, 429 U.S. 190 (1976) (applying intermediate scrutiny to sex-based classifications).

[5] This is certainly the conceptual understanding of the Court in Rogers v. American Airlines, 527 F. Supp. 229 (S.D.N.Y. 1981). See Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 371 (1991) (Rogers proceeds from the premise that, although racism and sexism share much in common, they are nonetheless fundamentally unrelated phenomena—a proposition proved false by history and contemporary reality.”).

[6] See id.

[7] E.g., Melissa Jeltsen, Horrific Footage of Ray Rice Punching Then-Fiancée Released, Huffington Post, Sept. 8, 2014, available at http://www.huffingtonpost.com/2014/09/08/ray-rice-punch-video_n_5783380.html.

[8] Richard Pérez-Peña & Kate Taylor, Fight Against Sexual Assaults Holds Colleges to Account, N.Y. Times, May 3, 2014, available at http://www.nytimes.com/2014/05/04/us/fight-against-sex-crimes-holds-colleges-to-account.html?_r=0.