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Render on Sex-Respecting Generalizations

By Lawrence Solum

Meredith Render (The University of Alabama School of Law) has posted Gender Rules (Yale Journal of Law & Feminism, Forthcoming) on SSRN. Here is the abstract:

Sex-stereotypes are of perennial concern within antidiscrimination law and theory, yet there is widespread disagreement about what constitutes a ?sex-stereotype.? This article enters the debate surrounding the correct understanding of ?stereotype? and posits that the concept is too thin to serve as a criterion for distinguishing ?discriminatory? gender generalizations from non-discriminatory probabilistic descriptions of behavior. Instead, ?stereotype? is a heuristic that has been used by courts and commentators to crudely capture judgments about the justness of applying sex-respecting rules.

In this light, the article argues for abandoning the stereotype heuristic in favor of a rule-centered analysis of sex-respecting generalizations. Arguing that courts and commentators have not objected to gender generalizations because they are descriptively inaccurate (as the stereotype heuristic suggests) but because they also exert unique prescriptive force, the article provides a new understanding of the theoretical basis for subjecting gender generalizations to antidiscrimination scrutiny.

Full post as published by Legal Theory Blog on February 10, 2010 (boomark / email).