Privilege, Gender, and the Fourteenth Amendment: Reclaiming Equal Protection of the Laws

The United States Supreme Court\u27s failure to understand the relationship between individuals and groups in its equal protection jurisprudence has resulted in jurisprudence that makes no sense. The Court\u27s inability to recognize the forms of bias associated with group membership has hampered the realization of the equal protection ideal. Analyzing the Court\u27s gender equality decisions, the author proposes another path in equal protection jurisprudence that would analyze systemic privilege, recognizing the structures of subordination and domination. Examining equal protection through a privilege lens would clarify the interrelation of individuals to groups, provide an avenue for addressing biases, and sidestep the intent requirement currently mandated in cases alleging discrimination. A privilege analysis would ensure that the vision of democratic participation, central to the meaning of the Equal Protection Clause, could become a reality