RACE VERSUS SEX: The Multiple Meanings Of "R Discrimination"

By SHERRY F. COLB
Wednesday, Apr. 11, 2001

What is the difference — and what are the similarities — between race and sex? Feminist legal scholars have explored the many ways in which the respective histories of race and sex discrimination might offer useful lessons for crafting legal approaches to the achievement of both race and gender equality. There has always been a tension between the law's approach to each, as reflected by the Supreme Court's decision to apply "strict scrutiny" to governmental classifications of race but only "intermediate scrutiny" to those of gender.

Ironically, the more exacting scrutiny applied to race has made it easier for white plaintiffs to bring successful claims of race-discrimination and more difficult for governmental affirmative action programs to survive those claims. The African-American community and liberals in general have found these developments disturbing and potentially devastating to the cause of racial equality. In contrast, male plaintiffs have sometimes brought sex-discrimination suits that had as both one purpose and an ultimate effect to advance the status of women in our society. Differences between the respective roles of race and gender in our lives account for the symbolic and real distinctions between the white plaintiff and the male plaintiff in litigating reverse discrimination. Notably, these distinctions begin to dissolve in areas, such as interracial marriage, custody, and adoption, that call for permission to love one another across racial lines. (For simplicity, I will address race only in terms of black and white).

Why Reverse Discrimination Suits Often Help Women, But Rarely Minorities

Interestingly, men rather than women brought quite a few of the most path-breaking Supreme Court cases challenging sex discrimination. In one case, a male applicant successfully sued the University of Mississippi for excluding men from nursing school. In another, the husband of an enlisted woman challenged provisions that allowed military wives to collect benefits automatically, but required military husbands to demonstrate their dependence first.

In each of these cases, the men's victories were victories for the women's movement as well. The notion that men should not aspire to become nurses, or that men would not rely on their wives for financial support, is regressive. The Court's willingness to force the law to move beyond such stereotypes helped not only the men who wanted to become nurses or to collect benefits, but also the many women who have aspired to become doctors, lawyers and heads of households.

Thus, reverse discrimination suits by men often help to achieve women's rights. Yet reverse discrimination suits by whites almost never have similar positive implications for African-Americans. Why is that?

When white plaintiffs bring race-discrimination suits, it is usually to challenge programs that give minorities benefits that whites feel entitled to have themselves. Examples abound in suits against universities and business enterprises that set aside spaces for minority applicants whose individual credentials might have otherwise precluded (or reduced the odds of) their selection.

Most recently, a federal court in Michigan ruled that the University of Michigan Law School violated Equal Protection by giving consideration to minority status in its admissions process (a ruling that has been stayed pending appeal).

Conservatives typically support white plaintiffs in such racial reverse discrimination suits. Liberals tend to oppose them. In contrast, some of the most prominent women's rights advocates have brought reverse sex-discrimination suits on behalf of male plaintiffs.

Why has reverse discrimination litigation taken two such distinct paths? Why, in other words, do liberals oppose reverse discrimination in the case of sex but not race?

Reverse Race Discrimination Versus Reverse Sex Discrimination

There is no hypocrisy here. The distinction arises because of the peculiar meaning of sex discrimination for men.

The history of sex-discrimination is a history of role constraints for both men and women. Though most of these constraints have relegated women to an inferior status sometimes resembling that of slaves, some of the constraints have simply allocated the proper attributes and preferences of life on a sex-typed basis.

The sexist, for example, expects women to be passive and soft-spoken, submissive, self-effacing, humble, nurturing, and oriented to the needs of others. These expectations are familiar and have not disappeared. They continue to harm women, though to a lesser degree than was once the case. But the sexist has expectations of men as well.

The sexist expects men to be ambitious, aggressive, dominant, economically self-sufficient, excited by sports and money, lustful, and emotionally strong. Men are not supposed to cry very often, display weakness, ask for help or make themselves emotionally available to others (not to mention asking for directions).

Though these expectations are less suffocating and oppressive than the ones aimed at women, they can nonetheless make men who do not fit the paradigm model of maleness feel inadequate and resentful that the way they might really wish to live would encounter resistance, judgment, and disappointment. The man who wants to become a nurse or stay at home to nurture his children is shunned in a sexist society.

In contrast, race discrimination does not, to any measurable degree, constrain the roles of white people. Race as a social construct has historically been an instrument of allocating benefits to whites while denying them to blacks.

Thus, unlike with respect to gender, white people do not often feel that if only they could have been born black, then a world of roles for which they yearn but that are forbidden would open up to them. While women have some options that men lack, it is hard to think of a fulfilling life activity to which blacks but not whites have access, as a group.

For this reason, when a white plaintiff claims reverse discrimination, the claim virtually always represents an attempt to obtain a job or benefit that has previously been disproportionately or exclusively allocated to whites (but which, in an effort to rectify that historical imbalance, or in the interests of diversity, is now given preferentially to members of disfavored groups). White reverse discrimination claims, in other words, typically represent a challenge or opposition to affirmative action.

When Race and Sex Are Similar: The Law of Intimate Relationships

This difference between race and sex, when it comes to reverse discrimination claims, does not hold across the board. Instead, there is at least one area in which reverse race-discrimination claims more closely resemble reverse sex-discrimination claims. This is the area of reciprocal love relationships.

When the law prohibited interracial marriage, it rejected not only the desire of a black person for a white person, but also the reciprocal desire of a white person for a black person. Those white individuals who chose an interracial relationship embraced for themselves the role of spouse or lover to a black person, a role that the law banned for a long time and upon which social custom, at least in some parts of the country, still frowns.

In Loving v. Virginia, both members of the couple that sued (successfully) for the fundamental right to marry across racial lines felt committed to breaking out of the roles that a racist society had imposed on them through anti-miscegenation laws. As the law may some day recognize as well, prohibitions against gay and lesbian marriage are a species of sex discrimination for similar reasons. A man should not be told that by virtue of being a man, his role in life is to find sexual fulfillment with women.

More Race and Sex Similarities: Adoption and Child Custody

A second example of how the law has sometimes intervened to prevent the mixing of races is in adoption and child custody. In one case, Palmore v. Sidoti, the United States Supreme Court struck down a state judge's decision to move a white child from a white mother to a white father after the white mother had taken up with a black man. The Court held that for a judge to consider the surrounding society's private prejudice against interracial families would be to give such prejudice the imprimatur of the state.

In adoption as well, white and black people alike might aspire to adopt a child across racial lines. Cross-racial adoption claims and custody litigation therefore do not represent attempts to enshrine white supremacy. On the contrary, the white people who sue for the right to have an interracial family, by adoption or otherwise, seek the right to care for and love a baby of a different race.

These latter examples may, of course, be more controversial than that of interracial marriage. Many proponents of race-matching in adoption, a practice of questionable legality, are members of minority groups who claim that white parents do not share the African-American commitment to teaching a black child the importance of black identity.

Some commentators have gone so far as to argue that a black child should remain indefinitely without a permanent home, while social work agencies search for a suitable black family, rather than joining a white family that is ready and able to adopt immediately. For such advocates, black children might seem like a resource that belongs to, and should be reserved for, black adults — not unlike a benefit such as a job or a business opportunity that must be allocated with an eye to correcting past patterns of discrimination.

Proponents of race-matching mean well and want the best for the black community. Their view seems short-sighted and wrong, however, because it overlooks the black child as an individual person who — like all children — needs a loving home.

Indeed, a white racist would most certainly not want to adopt a black child, and would not view the black child as a resource in that sense. And a black child, like the black adult who wishes to marry a white adult, should have the right to join a permanent family without unnecessary delay.

In summary, it is the power of role constraints that usually distinguishes the meaning of reverse discrimination in the race and gender contexts. And it is in loving relationships between people of different races that role constraints can become as stultifying and oppressive for whites as sex roles can be for men. A recognition that such role scripts are wrong, whether their targets are male, female, black or white, would accordingly have beneficial consequences for us all.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark

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