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Gender Rules

By Meredith M. Render

Abstract

Sex stereotypes are of perennial concern within anti discrimination law and theory, yet there is widespread disagreement about what constitutes a \u22sex stereotype.\u22 This Article enters the debate surrounding the correct understanding of \u22stereotype\u22 and posits that the concept is too thin to serve as a criterion for distinguishing \u22discriminatory\u22 gender generalizations from non-discriminatory, probabilistic descriptions of behavior. Instead, \u22stereotype\u22 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 that the stereotype heuristic should be abandoned 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 anti-discrimination scrutiny

Topics: Law
Publisher: Yale Law School Legal Scholarship Repository
Year: 2016
OAI identifier: oai:digitalcommons.law.yale.edu:yjlf-1309
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