Tag: On the Basis of Sex

The Real Story Behind ‘On the Basis of Sex’

 

The new highly publicized movie “On the Basis of Sex” offers a somewhat fictionalized account of the early professional life of Supreme Court Justice Ruth Bader Ginsburg. Intermingled with her life story, the film presents an idealized narrative of her early legal crusade against gender discrimination, fought in part with her late (and most devoted) husband, the eminent tax lawyer Martin Ginsburg.

Ginsburg argued or participated in several of the early influential cases on sex discrimination and went on to found the Women’s Rights Project at the American Civil Liberties Union. When she started teaching, she was one of only about 20 female law professors in the United States.  She was very much a pioneer in the women’s rights movement, motivated by her own life experiences. She had on numerous occasions been rejected from positions solely on grounds of her sex, notwithstanding her great academic distinction, and was well aware that similar obstacles fell in the path of other women who sought to make a career in the law. The film goes into these issues in depth, but I shall not dwell on them here. I am a lawyer, not a film critic, so I will comment only on Justice Ginsburg’s substantive arguments against gender discrimination

Most legal writers support Justice Ginsburg’s position that both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment prohibit government discrimination on the basis of sex. I offer a split verdict on her legal efforts and of those who followed in her path. I think that she was right on the early cases that sought to get rid of senseless distinctions based on gender.  But as the law subsequently developed, she and the courts pushed the crusade too far, creating new forms of gender imbalance that the law should have resisted. Failure to understand the economics of discrimination have led courts to impose new versions of the very discrimination that the law is intended to eliminate. In general, truly competitive markets do a better job in rooting out gender discrimination than government regulation.