Jumpstarting the Stalled Gender Revolution: Justice Ginsburg and Reconstructive Feminism

Justice Ruth Bader Ginsburg, since about 1980, has been painted as a feminist committed to “formal equality.” Recent work has contested this depiction. This Article uncovers additional evidence that Ginsburg’s goal was not mere formal equality; her goal was to deconstruct the breadwinner-homemaker system in which men and women were seen as belonging to separate spheres. Ginsburg saw this system as subordinating women, and in that sense is an antisubordination theorist. Yet lumping her together with Catharine MacKinnon, often seen as legal feminism’s foremost antisubordination theorist, proves confusing for a number of reasons. A chief difference is their attitudes towards men. While MacKinnon often paints men as oppressors, Ginsburg saw men, as well as women, oppressed by gender roles. Ginsburg is more accurately seen as a reconstructive feminist, whose chief goal is to deconstruct separate spheres—its breadwinner-homemaker roles and the descriptions of men and women that justify them—and to reconstruct gender along different lines. Today, progress towards her goal has stalled. The key to jumpstarting the stalled gender revolution is to change gender pressures on men. Much of this work involves cultural shift, but in recent years, progress has been made in litigating separate spheres under Title VII, as evidenced by the recent growth of litigation involving family responsibilities discrimination (“FRD”). The Article concludes with a critique of a recent FRD case, EEOC v. Bloomberg L.P