Boston University Law Review Annex
As scholars have recently shown, Justice Ruth Bader Ginsburg’s earliest sex discrimination work was grounded in anti-stereotyping theory. The particular stereotype she challenged was that of males as breadwinners and females as homemakers. As Cary Franklin notes, Justice Ginsburg’s approach was grounded in “constitutional limits on the state’s power to enforce sex-role stereotypes.” While Justice Ginsburg herself has come to realize that anti- stereotyping may not suffice to combat sex discrimination, her early focus on the ways in which stereotyping affects men, specifically men who did not fit the breadwinner stereotype, and her argument that only state-sanctioned stereotypes are constitutionally offensive, remains a compelling paradigm.This Article compares Justice Ginsburg’s notion of prohibited stereotypes with the much broader ban set out in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which requires states to:
modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women[.]
Part I explains how the U.S. Constitution addresses gender stereotypes in the context of reproductive rights and reproductive work. Part II describes how CEDAW treats stereotypes in these contexts. Part III describes the “economic and cultural power shift from men to women” documented by Hannah Rosin in The End of Men, which makes gender stereotypes increasingly outdated, especially, as Justice Ginsburg insisted forty years ago, for American men.
Anti-Stereotyping and "The End of Men", 92 B.U. L. Rev. Annex 1
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/416