Authors

Jenna Prochaska — Staff Attorney
December 11, 2017

Imagine you’re at work and your boss tells you he is firing you because he is “old school” and believes that a woman should really stay home to care for her children. You would think that “he can’t do that. It’s sex discrimination.” Maybe not if a recent court decision is allowed to stand. 

For decades, the U.S. Supreme Court has interpreted the equality protections of the U.S. Constitution and federal non-discrimination laws to require courts to look carefully at the reasons the government and employers give for treating people differently. We fought hard for this longstanding legal precedent so we can better realize the promise of equal opportunity for all to participate fully in their workplace, at school, and at home – free from popular assumptions about their capacity to do so.

Recently, the ACLU of Illinois weighed in on a case before the U.S. Court of Appeals for the Seventh Circuit in an effort to ensure that this important legal principle is not undermined. In its recent opinion in Tagami v. City of Chicago, a majority of the three-judge panel affirmed the dismissal of an equal protection challenge to a Chicago municipal ordinance that makes it illegal for women – but not men – to bare their breasts in public.

Although the Seventh Circuit correctly recognized that the ordinance distinguishes based on sex, and thus must be reviewed under heightened scrutiny, it ignored that standard and instead relied solely on “traditional moral norms and public order” it claimed were “self-evident.” While this result may seem unsurprising at first glance – we have all become so used to the idea that women are not allowed to bare their breasts – it is startling in its potential impact.  

If women can’t expose their breasts, why should men have that right? In answering this question, the Seventh Circuit fell back on “traditional moral norms” without even requiring the City of Chicago to offer any evidence for why women should be treated differently. Doing so runs counter to the teachings of the Supreme Court and throws decades of precedent into doubt.

If traditional notions of morality alone could justify differential treatment based on gender, many discriminatory laws rooted in assumptions about gender roles would have remained on the books. As Justice Ruth Bader Ginsberg recently noted, there was once a time “when the law books of our Nation were rife with overbroad generalizations about the way men and women are.”

Under existing precedent, courts are required to do better. By suggesting that so-called “self-evident” traditional moral norms alone are sufficient to satisfy this standard, the Seventh Circuit has created troubling uncertainty for all people who rely on sex discrimination protections in federal law. If traditional moral norms are considered a legitimate basis for gender-based distinctions, employers could deny women jobs in traditionally male-dominated fields because they are perceived as not being strong – or feminine – enough. Gay or transgender people could be fired because they failed to meet popular gender norms about how people should look or live their lives.

Established precedent makes clear that these actions are not permitted, but the Seventh Circuit’s recent decision has created unnecessary ambiguity and risk. It has an opportunity to fix its error and secure the rights of citizens who seek to foster equality by overcoming gender-based stereotypes that long have limited opportunities for many Americans. Refusing to do so could pave the way for a return to the days when governments and private parties were free to rely on arbitrary stereotypes and notions of morality to discriminate based on gender. 

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