In Dignity

Abstract

As long as the United States perpetuates the unequal statuses of males and females in the Constitution, dignity will mean different things to each. While males automatically have the dignity and worth of fully enfranchised citizens, females must accept a version of dignity based upon the manner in which they acquiesce to their legally inferior position. In suing the United States Soccer Foundation for equal pay, The United States Women’s Soccer team brought the issue of status and dignity into the open in a very public way, enacting the dignity of those accorded full Constitutional rights.

Arms outstretched, Megan Rapinoe celebrated the world championship victory of the United States Women’s Soccer team. But this was more than the simple joy of a winner. Her jubilation was an assertion of the dignity of a person who should enjoy the full rights accorded to citizens of the United States by the Constitution. Rapinoe’s triumphant gesture was not that of the civil subject accepting with dignity American females’ inferior legal status, but was instead an instance of a subject asserting the full dignity that all citizens of the United States should enjoy regardless of sex or sexual orientation, and despite the persistence of the cultural stereotypes and biases that still undergird law.

The term “dignity” is a noun that refers to a subject’s status as worthy. The Oxford English Dictionary generally defines “dignity” as a status or quality “worthy of something.” Its first and second definitions: “The quality of being worthy or honourable; worthiness, worth, nobleness, excellence;” and “Honourable or high estate, position, or estimation; honour; degree of estimation, rank,” both connote worth or position. ¹ Because citizens in the United States have different statuses premised upon their biological sex, any notion of “dignity” based on worth and status appertains to those whom the Constitution recognizes as citizens. One question, then, is how or whether those without that Constitutional recognition might also have dignity, or why the dignity afforded by a Constitutional recognition of a subject’s status has been delimited by outdated cultural notions of the relative value of the sexes. The “dignity” available to those whose full rights are not protected by the Constitution represents a quality more akin to the Oxford English Dictionary’s fourth definition of dignity as: “Nobility or befitting elevation of aspect, manner, or style; becoming or fit stateliness, gravity.” ² Dignity, thus, may appertain to subjects who resist their inferior legal status by means of “noble” actions, perhaps such as the triumphant Rapinoe’s literal enactment of an elevated “aspect.”

Rapinoe’s gesture is also an example of how the term, “dignity,” may bifurcate. A subject either is not deemed an equal subject under the Constitution itself and bears it well, perhaps achieving excellence and earning the right to the dignity enacted by one’s bearing in an example of the Oxford English Dictionary’s (OED) first definition, above. This species of dignity is usually enjoyed by subjects whose status suffers the ensconced prejudices and inequalities of culture. Or, as suggested by the OED’s second definition, above, a subject’s dignity derives from the subject’s status under the Constitution, as long as he behaves accordingly. The latter are those subjects long assumed to be naturally superior. But in this unacknowledged tangle of law and cultural bias, there is another way to understand dignity. Instead of premising dignity on traditional stereotypes and categorical evaluations of sex, gender, and sexuality, all citizens should enjoy the rights guaranteed by the Constitution so that dignity accompanies the status of all citizens (until perhaps their own actions suggest otherwise). Without Constitutional acknowledgment of their full legal subjectivity, the kind of dignity American women might manifest has been and will be continually delimited by persistent outdated stereotypes. These stereotypes are no longer in line with contemporary demonstrations of the broad range of women’s capacities (as opposed to stereotypes), achievements (as opposed to or despite constrictive roles), and as expressions of value. One additional interpretation of Rapinoe posing with outstretched arms, thus, is that she is indeed enacting both triumph and dignity premised on achievement, and perhaps, too, as she confided later, the gesture “. . . was probably born out of a little arrogance. Like, are you not entertained? What more do you want? And it was sort of saying to Trump—but more to detractors in general—that you will not steal our joy from us as a team, as the L.G.B.T.Q. community, as America. It was kind of a [expletive] you, but nice.” ³

What, then, is the relation between having no Constitutional inclusion as a full and equal subject under the law and various conceptions of dignity? In the case of the U.S. Women’s Soccer team, the players do not automatically enjoy dignity, in so far as dignity may not necessarily accompany either success or value. Instead, successful champions, when female, receive chiding tweets from the President of the United States: “Megan should never disrespect our Country, the White House, or our Flag, especially since so much has been done for her & the team. Be proud of the Flag that you wear. The USA is doing GREAT!” And “I am a big fan of the American Team, and Women’s Soccer, but Megan should WIN first before she TALKS! Finish the job! We haven’t yet. . . .” ⁴ When a champion who has just proved herself to have value receives rebukes from the nation’s president, the only way to enact dignity—when such dignity has just been disallowed, when one has just been scolded, when a president has just staged the encounter between a disapproving parent and an unruly child—is to assert one’s dignity bravely, openly, shamelessly. If members of the women’s soccer team had been meekly thankful for their status as partial citizens or for the fact that a serving President had deigned to Tweet them at all, such a response would have been in keeping with the notion of dignity as worth rather than status. They would have enacted the only possible dignity (honorable behavior) afforded those without dignity (status as full citizens).

Rapinoe’s responses, outstretched arms, and comments on tweets were assertions of the right to both types of dignity in the face of the president’s challenge to dignity, a challenge that culled millennia of patriarchal devaluations of one sex for the benefit of the other. Dignity, thus, does not necessarily need to be the calm acceptance of the handouts of a weighted system, but, as Rapinoe’s actions suggest it might be, a challenge to those very limitations and to the system that has sustained them as well as a claim to the Constitutional inclusion that has been openly denied them. Rapinoe’s outstretched arms enacted the members of the Women’s Soccer Team’s status, premised on the cultural evaluation of a range of capacities as opposed to stereotypes, on achievements as opposed to (or despite) constrictive roles, and finally, as an expression of value.

The Right (To) Dignity

As Rapinoe’s statements to the press during the Soccer World Championships openly addressed the funding inequities of U.S. Soccer, they also struck the persistently echoing chord of the Equal Rights’ Amendment. How can it be that females, who constitute approximately half of the living Homo sapiens in the United States, have been accorded an inferior legal status? ⁵ Even the protections of the Fourteenth Amendment to the Constitution require the “heightened” scrutiny of courts to protect those rights, as they have been further specified by the Civil Rights Act of 1964. ⁶ Having one’s “equal” rights accorded by amendment and additional legislation instead of being assumed as already evident in itself suggests some long-held cultural bias persisting in religious and cultural organizations whose practices elevate one sex over the other. Even if earlier cultures made such difference a central tenet of organization, why at this point in history, do cultures and their courts still see sexual difference as a difference that still makes a difference, when we now know that females are as intelligent, physically fit, and capable as males and when brute strength, the only advantage males might have, means very little? Difference—the difference upon which these myths are premised—is a range of differences, none more valuable than others, and none necessarily appended to traditional patriarchal roles (in governance, occupation, family structure, and reproduction). Patriarchal organization, which still endures woven throughout most societal structures and ways of thinking, views women as indignant, “uppity,” or worse, as downright insolent, when women claim a status equal to that of men. In accepting a secondary status, females have long evinced dignity in the only way they could: by accepting their secondary status in a graceful surrender to the fallacious (phallacious) assumptions about the relative strengths and capabilities of the sexes that undergird conceptions of dignity.

Dignity, thus, has to do both with status and demeanor, a “worthy” status producing the assumption of a properly dignified demeanor, and an appropriate demeanor signaling dignity even in the face of a lower status. One question is who defines what these adjectives have meant and in what terms? The obvious and hackneyed answer is patriarchy, which has historically defined the relative roles, capacities and values of human beings based upon a presumption that male beings are superior in strength, intellect, behavior, and value to female beings. Since the roots of our legal system were instituted about the same time as the emergence of the Anglo-Norman precursors of our contemporary English concept of dignity, it may be useful to look to the ways US law has perpetuated the overtly erroneous assumptions of patriarchal valuations ranging from primogeniture to religion to reproductive rights. Assuming a dignity naturally accorded to some members of the population and not others based on sex raises the question of what the relations are between cultural myths and law. If cultural myths dominate law, then dignity is either a masquerade, based on nothing more than the fictions of position and biological myth, or it represents an active resistance to the forces that prevent the enactment of a proud dignity. If law dominates, then it is possible for all persons to have a dignity premised on the “gravity” of full rights, citizenship and cultural possibilities.

Gravitas

If one does not already manifest it, dignity is difficult to come by. Having dignity of manner means one deserves dignity of position and vice versa (except in notable recent examples). When individuals do not have dignity of position or even the possibility thereof, their only option is to be dignified in their lack of possibility. When this bifurcation of dignity occurs because of unfounded cultural myths, then we define the operations of “dignity” differently for males and females. Males automatically have the dignity that accords them full rights because they have the full rights that accord them dignity. Females do not. This legal basis for dignity has depended at various times on a subject’s on sex, race, and social class. After the passage of the Fourteenth Amendment to the Constitution of the United States, it might have appeared as if all people had gained parity and hence, dignity, as citizens. Ratified in 1868, the Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Although this amendment would seem to embrace all people, defining as citizens “all persons born and naturalized,” it raises the strange question of who could, in fact, be deemed a “person” whose “privileges and immunities” should not be abridged. The notion of “person,” sadly, is linked to the concept of dignity as that concept carries with it the non-egalitarian presumptions of the previously ensconced and generally unquestioned dominance of organizations that endow males with rights and deny those same rights to females. When the Fourteenth Amendment was ratified in 1868, it included a clause that punished limitations on male voting rights. ⁷ The specific mention of “males” was necessary in this context because women did not yet have the right to vote, though one might be tempted to interpret the first section of the Fourteenth Amendment as already having endowed that right. Even if we look back on the post–Civil War period as a less enlightened time, we are still not so far from it. Women only gained the right to vote, to be participating if not fully enfranchised participants in governance, with the passage of the Nineteenth Amendment to the Constitution in 1919. ⁸

Obviously stubbornly adherent, patriarchy is a system that locates assumptions of physical and mental superiority to males as a way of compensating them for not knowing for certain who the father of any child might be. ⁹ Patriarchal organizations have existed and underwritten cultures for millennia—the millennia during which it really was impossible to guarantee the identity of a child’s father unless one imprisoned, delimited, and controlled the behavior and bodies of women. Not knowing who daddy is licenses cultures to limit the occupations, movements, associations, capacities, talents, and functions of females to the tasks of sustaining males’ belief in a species of fictional superiority that compensates for males’ own obvious lack of paternal proof (and hence potency, efficacy, value, etc.). Justified by the warfare entailed by patriarchal competition (i.e., alibied by its own organization, which pits males against one another for supremacy) and the over-valuations of one kind of physical strength as opposed to others (i.e., brute strength vs. endurance), organizations that relegate females to a secondary status as a necessary reflection of an imaginary “biological” difference (i.e., women are not physically strong, women are not good at science, etc.) do so not because the bases for such relegation are true in fact, but because male dignity requires it. In addition, patriarchal cultures have historically produced what has appeared to be women’s intellectual inferiority by simply not educating them and steering them toward less challenging subjects and ways of thinking. ¹⁰ Sustained by religious “truths,” selective evidence, and the persistent limitation of female education and development as well as women’s apparent need to “attract” male partners for survival (cf. Darwin’s notion of evolution), patriarchy is a difficult set of assumptions to alter, even when there is no longer any rationale for such hierarchy. ¹¹

Contemporary notions of dignity that derive from the Enlightenment, hence, also derive from the inequities of patriarchal misapprehensions, assuming the “dignity” of man as an attribute of subjecthood. Men have dignity—privilege, honor, gravitas—until they show that they don’t. They enjoy the privileges of citizenship and freedom as the “inalienable rights” of “man.” This notion of dignity was produced and embraced by the documents that established the United States of America. White men have dignity; and after the Fourteenth Amendment to the United States Constitution, all men have dignity—all men where we assume all men have an appropriate gravity of countenance. In so far as dignity is appended to citizenship (and vice versa), those without citizenship have no legal dignity—no privilege or honor—although such subjects can behave in a dignified or undignified manner as defined, curiously within very sexist parameters. What is dignified for a male may not be perceived as dignified for a female—extending one’s arms in victory, for example. If women as partial subjects—as citizens enjoying limited rights—are, for some reason, honored, that honor is exceptional, endowed in a conscious imitation of the “real” honor enjoyed by legitimate (i.e., male) citizens. This honor, in fact, is often perceived as a felicitous appreciation of those subjects lacking full citizenship, who act appropriately according to their stations, and are rewarded for having accepted such status.

The Playing Field

This issue of what constitutes personhood continues to underlie contemporary notions of equal rights and full citizenship as these undergird conceptions of “dignity.” That there is still disagreement about whether or not the Fourteenth Amendment to the Constitution of the United States guarantees equal rights to females suggests that figures such as Rapinoe, who display dignity in their battle for dignity, indeed still have a battle to fight. ¹² That courts must still consider the question and contrive exceptions and conditions that delimit the rights of women suggests that assumptions of patriarchal worth still govern both legal and cultural organizations by which we understand personhood. This means that no matter how courts interpret, delimit, define, or condition the law, the rights and protections afforded to males by the Constitution are still in question for females, still bear the impress of patriarchy’s compensatory redress, which is first and foremost already the assumption of the necessary subjective superiority of males.

On March 8, 2019, 28 plaintiffs, all members of the United States Women’s Soccer team (USWNT), filed suit in the United States District Court, Central District of California, Western Division, against the United States Soccer Federation (USSF) for “Violations of the Equal Pay Act and Class Action Complaint for Violations of Title VII of the Civil Rights Act of 1964.” The suit claims that female soccer players are paid less money, that:

the USSF has utterly failed to promote gender equality. It has stubbornly refused to treat its female employees who are members of the WNT equally to its male employees who are members of the MNT. The USSF, in fact, has admitted that it pays its female player employees less than its male player employees and has gone so far as to claim that “market realities are such that the women do not deserve to be paid equally to the men.” The USSF admits to such purposeful gender discrimination even during times when the WNT earned more profit, played more games, won more games, earned more championships, and/or garnered higher television audiences.” ¹³

Premised on two federal statutes that offer distinct modes of scrutiny for the Fourteenth Amendment’s guarantee of equal rights, the soccer players claim simply that the USSF discriminates against female players in its pay and policies. They filed the lawsuit in the midst of competing in the Women’s International Champions Cup tournament; and when the U.S. team won the World Cup, fans chanted “Equal Pay! Equal Pay!!” ¹⁴ . That the USSF admits and justifies the disparities in pay and treatment of female athletes raises a defense deployed in previous sex discrimination cases with varying success. Basically, the treatments are not equal because male and female players are not equal and despite the language of the statutes and the Fourteenth Amendment, “enduring” sexual differences offer a rationale for disparate treatment. Although defenders of disparate treatment based on sex often refer to market conditions, “immutable characteristics” and “inherent difference” as justifications (what columnist Graham Hays of ESPN calls “philosophy”), these ways of thinking undergird the notion that differences of any kind signify inherent inequality and hence, rationalize differential treatment. ¹⁵ These claims rely upon the same ideological belief systems that underwrote the ways of thinking that necessitated the Fourteenth Amendment in the first place, at least in terms of race. In terms of sexual difference, American culture doesn’t feel nearly as culpable for its historical treatment of women as inferior to males.

The “Physical” (Read Cultural, Ideological) Differences Are “Enduring” (And So Are the Fallacies Related Thereto)

Disagreements about what might appear to be the plain meaning of the Fourteenth Amendment to the Constitution emerged notably in the U.S. Supreme Court’s findings in United States v. Virginia. ¹⁶ . Justice Ginsburg’s majority opinion first notes that “gender classifications, for all purposes, ‘are not equated’ to classifications based on race or national origin,” and continues in her footnote to this statement that “the Court has thus far reserved most stringent judicial scrutiny for classifications based on race or national origin . . .” ¹⁷ The opinion then sets out “the Court’s current directions for cases of official classification based on gender.” ¹⁸ “Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is ‘exceedingly persuasive,’” noting that the burden of proof for such justifications “is demanding and it rests entirely on the state.” ¹⁹ She continues, stating that “the State must show at least that the [challenged] classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” ²⁰ These requirements constitute the “heightened review standard our precedent establishes” that “does not make sex a proscribed classification.” ²¹ Citing Loving v. Virginia, Ginsburg notes that while for race and national origin “supposed ‘inherent difference’ are no longer accepted as a ground for race or national origin classifications,” “physical differences between men and women . . . are enduring: ‘The two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.” ²² .

Justice Ginsburg’s opinion clearly suggests that Constitutional protections on the basis of sex are not as stringent as those afforded for race or national origin. Located as the middle ground in three standards of scrutiny—”Strict Scrutiny,” “Heightened Scrutiny,” and “Rational Basis Review”—the “Heightened Scrutiny” standard still considers “supposed’ inherent difference” as a ground for different classifications. Hence, as Ginsburg notes, “sex” is not “a proscribed classification.” ²³ Courts employ the most stringent level, “strict scrutiny,” in cases in which “government action . . . is directed at a ‘suspect class’ or impedes a fundamental right.” ²⁴

Because sex is not a “proscribed classification,” the state can legally discriminate on the basis of sex if such discrimination has “an exceedingly persuasive justification.” ²⁵ This “justification” must demonstrate that the discriminating policy “serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” ²⁶ In addition, “the justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. ²⁷ Justice Ginburg continues,

We note, once again, the core instruction of this Court’s pathmarking decisions in J. E. B. v. Alabama ex rel. T. B. (1994), and Mississippi Univ. for Women: Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification” for that action. The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed “inherent differences” are no longer accepted as a ground for race or national origin classifications. Physical differences between men and women, however, are enduring: ‘The two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.’” ²⁸

Ironically, however, the “enduring differences” that offer a defense against sexual discrimination are precisely the enduring differences that alibi the discrimination in the first place. Under the “heightened scrutiny standard” for the disposition of sexual discrimination complaints, then, the reason for sexist treatment is also the rationale that permits disparate treatment to persist. What does not happen is any examination of the underlying myths that have produced these slanted versions of an intrinsic inequality between the sexes in the first place.

Adherence to the Inherent: What’s the Dignity in That?

The defensive rationale for continued discriminations that “the physical differences between men and women are enduring” suggests that some “differences,” defined by cultural and ideological notions of the relative value of “male” and “female” roles (roles that do not necessarily have any relation to individual capabilities), are defenses that justify the continuation of overtly sexist legal policies. Neither “physical differences” nor the leftover mythos of patriarchy have substantial contemporary reaffirmation when it comes to the relative capabilities of males and females; there is as much difference in capabilities within each sex as exists between them. Hence, what might have been understood as either “enduring” or as relevant “differences” in the past may no longer be relevant in an era when brute strength is unnecessary, the intelligence of females and males is roughly equal, and we have a much better understanding of the roles and contributions of human reproduction. The differences among citizens of the same sex suggest that all individuals are different in capacity and that no such differences should act as a bar to Constitutional rights. Without those rights, the question comes down to why females are not entitled to full protection against discrimination under the terms of the Fourteenth Amendment, unless, of course, the category of “sex” still bears with it the compensatory structures of patriarchy that actually produce the mythical differences upon which they depend.

The difference in both Constitutional and legislative protections parallels the sexual disparities of traditional patriarchal structures, which also and at the same time, distribute “status” and “worth” according to a scheme of unfounded disparities of stereotypical valuation. Legal systems have codified ideologies by which some subjects have immediate access to the dignity afforded full citizens and others must still struggle to gain that dignity, because such dignity is attached to the system that undergirds all assumptions about the relative value and capabilities of the two sexes. These evaluations are more than simply biological or psychological differences, though researchers have brought both the mode of discernment and effects of any such differences into question. As Robert Gebelhoff notes in his Washington Post editorial, “We’ve been misled on the Differences Between Genders:”

Over the past several decades, studies have slowly been chipping away at the theory that the two sexes behave differently primarily due to innate biological differences. Those assumptions go back more than a century, but a lot of them are informed by simple correlation-vs.-causation errors. In reality, gender-related expectations probably play a much larger role in gender difference than a lot of people want to admit. ²⁹

In the past in an analogy to property law (or vice versa), which sustains a legal connection between land and its owner via the owner’s name on a deed, patriarchy produced a connection between father and child through the father’s name that itself synecdochized all of the limitations on female behavior, possibility, potential, and capabilities necessitated by male uncertainty. In fact, in essence, patriarchy was largely about defining and protecting what could not be known for sure: who the father of any specific child was. It has never been that males are superior to females, but that in terms of reproduction, they aren’t. To justify inequities in treatment and possibility, then, various social systems, such as religion, elevated males (the less certain reproductive sex) as the basis for world insight. The father became sacred.

Even anthropologists, who developed theories of evolution, envisioned females as necessarily inferior. Darwin claimed, for example, that “evolutionary forces caused men to be superior to women” and that males competed with one another to gain females so as to procreate. Women’s role in this was to be attractive to men, which then bred increasingly accomplished males and increasingly attractive females. Of course, this reflects not any historical reality, but instead the dynamics of a 19th century European culture that deployed a teleological view of history to justify itself. ³⁰

When these ideological “expectations” both define and produce what seem to be differences that in turn lead to conceptions of dignity, it becomes nearly impossible for citizens of the disadvantaged sex to challenge those expectations with any dignity. If experience proves the differences that produce the experience, then the questions of sexual difference are a moebius that perpetuates the presumed inequalities upon which they are based even when the underlying lack of substantiated knowledge about the relative intelligence, physical and emotional capabilities is under question, and issues of paternal identity no longer exist.

There is, in fact, no longer any need to put females at the disposal of males so as to protect the males’ reproductive prerogative. Even if in the past the name provided the symbolic means for ownership and/or paternity, we now know who the father of any child is. Not only has decoding the genome enabled the determination of paternity, it has also revealed that only mothers pass on mitochondrial DNA unmixed with paternal contribution to children, and the “x” chromosomes have more genes that the “y” chromosomes that define maleness. ³¹ Recent anthropological discoveries have also suggested that ideologies of male superiority are a more modern invention—that women have never been as weak, blank, and uncultured as it would seem. Anthropologists have definitively identified remains in warrior regalia discovered in burial sites as 10th century Viking female warriors. ³² And females apparently were also artists, another role automatically assigned to males. “When scientists looked closely at a sample of hand stencils,” notes the Smithsonian Magazine, “a common motif in cave art, they concluded that about three-quarters were actually drawn by women” suggesting in turn that most cave art was actually produced by women. ³³ .

Thus, the need to compensate males for what they could never know has underwritten an entire system of mythical sex/gender disparities premised on what Jacques Lacan calls, “The Law-of-the-Name-of-the Father,” noting that what constitutes this “law” is the failure of relationship it covers over as a way to produce as certain a relation that before genetic studies had been an uncertain. ³⁴ The massive institutionalization of patriarchy has perpetuated a very ancient compensatory mechanism as the basis for the self-perpetuating perceptions about the relative value and ability of the sexes that continue to the present—and continue to make dignity a difficult achievement for women. That organizations are founded on such obviously unquestioned unequal conceptions of the capacities of the sexes certainly raises the obvious question of why those whose bodies are capable of both selecting fertilization and gestating children are seen as lesser than those whose bodies are unable to do so—why in fact even the production of children was historically displaced onto sperm imagined each to contain a small fully formed homunculus such that the female contributed nothing other than a site of gestation for any child. ³⁵

The sociocultural disparities will undoubtedly continue, sadly, as we now can tell who the father of a child is and the over-compensations that have privileged males are no longer necessary. No culture gives up its inequities easily; compensatory systems will compensate for the loss of compensation. What we might expect in the next couple of centuries is the backlash we now see against women’s control over their own bodies and reproductive processes. Daddy translates the compensations for ignorance into rationales for control—again, not because males are superior to females, but because they aren’t.

The Dignity of Challenge; the Challenge to Dignity

It shall be an unlawful employment practice for an employer

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.

Title VII, Section 2000e-2 [703]

How does one expose the sexist underpinnings of sexist conceptions of status “with dignity,” especially given the fact that the only dignity that might appertain would be the dignity of ignoring the huge historical mistake of enfranchising one sex over the other? Perhaps using legal theories to challenge the law’s intrinsic sexism offers a dignified route to an acknowledgment of dignity. In that case, the 28 members of the United States Women’s National Team (USWNT) who sued the USWNTPA for equal pay were already enacting the dignity of those whose status as citizens and the dignity appended thereto has been denied. The lawsuit was based upon the Equal Pay Act of 1963 (29 U.S.C. Sec. 206(d) et seq.), and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. Sec. 2000e et seq.), both of which amend or clarify the reach of the Fourteenth Amendment. As Justice Ginsburg’s opinion in U.S. v. Virginia suggests, the “heightened standard” for the scrutiny of potentially discriminatory state action permits the loophole of “enduring differences,” which is a very large loophole, or a very droopy standard indeed, especially since it enables and perpetuates historical inaccuracies and biases against females. While the EPA and Title VII both add the specificity missing in interpretations of the Fourteenth Amendment, both are legislations, and thus can, at the will of the legislature, be amended or even eliminated. This premises the rights of females on the whims of legislators and yet again, the biases of historical eras. This is one of the reasons for the continued necessity of the Equal Rights Amendment.

Alice Paul introduced the Equal Rights Amendment in 1923. ³⁶ It states simply “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Such an amendment to the Constitution would produce a guarantee of equal rights to females in place of the interpretive opening that enables the continuation of sex-based rationales for sex bias. That the ERA has not yet been enacted, despite Congress removing the original time limit for ratification, says something about the stubborn resilience of compensatory systems. ³⁷ There are still 12 states (10 of which are in the southeast part of the continental United States) that have not ratified the amendment. Apart from the question of why holdout states might not see the ERA as a desirable addition to the Constitution, what might it mean that females still must battle for equal treatment under the law—that they still must sue employers for equal pay and that lawmakers think that is okay?

The lawsuit filed by members of the USWNT made visible yet again the age-old beliefs about females necessary to the maintenance of the belief systems that subtend patriarchy.

“Plaintiffs are not entitled to summary judgment on their [Equal Pay Act] claims because a reasonable juror could conclude that the job of MNT player requires materially different skill and more responsibility than Plaintiffs’ job does, while also taking place under materially different working conditions,” attorneys for U.S. Soccer said in a Monday filing. “Simply put, they are materially different jobs that cannot be compared under the EPA.” ³⁸

The defendants “also pointed to biological differences and ‘indisputable science’ to argue that women should be paid less because the men’s team ‘requires a higher level of skill’ than the women’s team,” notes Molly Hensley Clancy on Buzzfeed. ³⁹ In fact, to add insult to indignity, U.S. Soccer filed its opposition March 9, 2020, the day after International Women’s Day. The plaintiffs, of course, took offense at both the claims and the timing of the filing, for which U.S. Soccer president Carlos Cordero apologized, an apology deemed insulting by U.S. Women players, led by Megan Rapinoe. ⁴⁰

Yet again, the “enduring differences” rear their head, but this time the USSF reaffirmed them, using in part the work of Law Professor Dorian Lambelet Coleman. Coleman quickly refuted the Federation’s claims about sexual differences and any rationale for using these differences as a defense against sex discrimination, pointing out that the defendants had misused her work on the relations between the sexes and sports. In fact, Coleman’s lengthy exploration of “Sex and Sports” suggests the opposite of the USSF’s defense claims. Coleman confirms the insight that “discrimination on the basis of race and sex is often not based on institutionally relevant grounds but rather on subordination norms, false factual assumptions and stereotypes, or comparatively weak interests.” ⁴¹ Coleman examines the effect of the concept of “enduring” differences between the sexes on a strictly biological basis, instead of on the expanded range of cultural and ideological myths that have persistently demeaned females, allowing them only inferior sociocultural positions not even alibied by biology. Noting that

the average 10-12% performance gap between non-doped elite male and elite female athletes is almost entirely attributable to the bimodal and non-overlapping production of testosterone, T levels do not correlate with performance in the formal mathematical sense; that is having a particular T level does not guarantee that a given individual will be “x” seconds faster than if she had less T, or that she will outperform another individual also with less T. ⁴²

Although on the average, males perform better physically than females, that is not true across the board. And, Coleman points out, although “it is clear from the researchers’ baselines that sex imprints and is imprinted on the biology of the brain,” “testosterone is not determinative of cognition, affect or behavior.” ⁴³ Coleman concludes, “the strategy in the context of competitive sport, at least so long as sex categories are used as an organizing principle, should be to understand the scope and effect of the relevant biology as best as possible so that, in turn, we can understand the extent to which the performance gap between male and female athletes is itself also fixed.” ⁴⁴

That the U.S. Soccer Federation filed its March 9, 2020, brief the day after International Women’s Day simply illustrated the Federation’s disdain for females, according to Megan Rapinoe. “In those documents, the federation’s lawyers had argued that it required more “skill” and “responsibility” to play for the men’s team than the women’s equivalent.” ⁴⁵ After the USSF filed its defense brief, Coleman wrote an opinion piece for The Washington Post, asking “how the federation got this so wrong,” and demonstrated the ways the federation had misread and misused “Sex in Sport.” ⁴⁶ “My argument there,” Coleman states,

was that to achieve sex equality in sport, which undoubtedly includes equal pay for male and female athletes, it is necessary to have policies that recognize, rather than ignore, sex and the facts of biological sex differences. If we want to be able to see and to celebrate fabulous female champions like the U.S. women’s team, competition needs to be segregated on the basis of sex or at least on the basis of sex-linked traits. ⁴⁷

Coleman shows that the Federation used her essay’s example of Kate Ledecky’s swimming prowess which would still not beat Michael Phelps alongside Coleman’s claim of the “10–12% performance gap” between male and female athletic performance to argue that women should be paid less because they aren’t as good as male athletes.

But as Coleman points out, this is not her argument at all. Her point, as she restates it is:

Like the U.S. women’s soccer team, Ledecky produces value—including economic value—that isn’t remotely related to whether she can beat men. U.S. Soccer misuses Ledecky to argue, by implication, that because the female soccer players can’t beat their male counterparts, they are also less than and so don’t deserve equal pay. ⁴⁸

“Because of their different, sex-linked biology,” Coleman continues, “women get there differently from men, including in some aspects of the way the game itself is played. But if they do get there, they’ve done the job and deserve the same pay.” ⁴⁹ Noting that after the filing, the Federation president had resigned, Coleman offers her argument again: “No national governing body sanctioned by the U.S. Olympic and Paralympic Committee and ultimately by the nation should peddle, directly in litigation or indirectly through its policy choices, the harmful and outdated stereotype that women and girls are of lesser value than boys and men.” ⁵⁰

The Value of Dignity

Peddling such stereotypes is itself undignified if we assume equality refers to value instead of to a literal similarity of capacities between females and males. The question of value offers a different terrain from which to understand the question of “enduring differences.” Even “if they get there differently,” females get there. Relative value is not relative to the “other” sex, but instead to processes and conclusions linked to larger sociocultural phenomena that range from sports to artistic, scientific, and professional achievements as well as to the fair and compassionate treatment of others. Dignity, thus, is not about the ways one sex defines the other (and given historical power differentials, that process has usually been one-way), but the means by which humans in various contexts achieve value in its many possible interpretations. Dignity may well still attach to the ways subjects inhabit their roles, but the roles themselves must change to accommodate the much greater range of abilities, modes, and possibilities of those who inhabit them. Dignity is value and value must also become dignity.

The complexities through which we are coming to understand the real nature of sexual differences, abilities, talents, and possibilities suggest finally that even for a concept of dignity to persist beyond the stereotypical presumptions of stubborn self-perpetuating patriarchal systems, the binary assumptions of “better” and “lesser” themselves need to disappear in favor of accepting the wide range and value of contributions and talents as opposed to how well individuals accept their relative roles in a rigged binary system.

Extending her arms, then, Megan Rapinoe simultaneously enacts a dignity while fighting for it, pushing past the idea that there can ever be dignity in accepting a lesser position. There are still battles to fight—lesbians, for example, are in a much more precarious legal position than heterosexual women, which is again dependent upon old-fashioned concepts about the necessarily heterosexual and patriarchal character of reproduction and religious conceptions of “sin.” ⁵¹ But for the moment, Rapinoe’s outstretched arms become the symbol of a proud dignity whose dependence on old mythical orders may finally be undone.

Postscript

On May 1, 2020, federal judge ruled on several of the claims the USWST made in its law suit, including the plaintiffs’ claim for equal pay under the Equal Pay Act. Finding that the women’s Soccer team had made a different collective bargain from the men’s team, the judge determined that the suit for equal treatment in travel expenses, hotel accommodations, and team staffing could continue. The plaintiffs announced that they would be appealing the decision. ⁵²