Disestablishing Sex and Gender

Abstract

This Article suggests that the Constitution might be understood to "disestablish" sex and gender. Gender ideologies and religious ideologies have acted and continue to act in similar harmful ways, underwriting social dividing practices on the basis of the supposed extra-human authority of Nature or God, and thereby violating a congeries of constitutional principles. Under the disestablishment of sex and gender, government would be significantly constrained in its ability to rely upon sex or gender beliefs or groups. Moving beyond current equal protection doctrine with its focus on discrimination, this arguably radical approach to gender would make key the support and reinforcement of sex and gender beliefs and divisions, imposing greater constraints on government than the Supreme Court and Congress have been willing to honor. The Article examines how different conceptions of disestablishment would have different effects on such issues as governmental recognition of sex changes, sex-segregated education, and the mixed-sex requirement for civil marriage.