0:00:00.0 Rhiannon: Hi, y'all. It's Rhiannon. You're about to hear another amazing, gorgeous Five Four episode, but I felt like I needed to come on and quickly talk about a couple of things, because for me and millions of people, it's not business as usual right now. Everyone who listens to this podcast knows I hope that I'm Palestinian. So what's happening in Palestine right now is overwhelming. It is in many ways indescribable. Like I generally think I'm a decently articulate person, and over the past several days, I have felt absolutely incapable of finding the vocabulary to describe what is happening and what it feels like. Maybe the most simple way to put it is that we are collectively either witnessing or collectively actually experiencing if you are in Palestine, a massive escalation of violence in an apartheid state that is predicated upon ethnic cleansing of indigenous inhabitants of that land.

0:01:03.3 Rhiannon: Israel has dropped more bombs on Gaza in a week than the US dropped on Afghanistan in a year During the War on terror, thousands of civilians are dead. People are digging through the concrete rubble of their homes with their bare hands looking for bodies of their loved ones. I don't need to tell you all this. I know I don't. I know I don't need to tell you the details of the siege on Gaza. I know that people who listen to Five Four are people of good conscience, who are informed and concerned with justice and liberation from oppression. I just wanted to come on and say that no matter what corporate media and western governments and the most powerful and high tech and wealthy militaries in the world are saying and doing Palestine lives, and the Palestinian people struggle for liberation continues alongside all oppressed people all over the world. I hope that the overwhelming grief we're all experiencing can be channeled into action and solidarity. And I wanna say, because so many of you who are listening are law students, I wanna say that over the past week it has been law students.

0:02:08.9 Rhiannon: It has been law students who have shown up when I have felt deeply alone at work and elsewhere, law students who have said that they're here, not just for me personally, but that they're standing with my people, that they're learning and sharing what they're learning in their own communities, that they're showing up and taking action. I am deeply grateful and in the darkest moments of the past several days and the days that are surely yet to come, it's been these expressions of courageous solidarity that have given me hope. So let's talk about the next couple of weeks on the podcast. The schedule is already gonna be a little bit different because Peter is getting married. So this week please enjoy this badass episode about Geduldig, Another Fucked Up Supreme Court case. And next week, we will be publicly releasing what was previously a Patreon only episode.

0:03:02.5 Rhiannon: This was an episode I did back in March with two attorneys from Palestine Legal, a nonprofit legal organization that protects activists in the Palestine Solidarity movement. In the week after that, we'll publish an episode that the gang recorded without me this week, while I contended with the overwhelming sadness of the world and after that, we will probably have a week without an episode, since we will all be partying at Peter's wedding. So excited for y'all to hear this week's episode. Very excited for everyone to hear the conversation with Palestine Legal next week. Stay strong, stay in community with one another. We are so powerful together, Filastin al-hurrah. Free Palestine.

0:03:50.0 Speaker 2: We'll hear arguments next in 73 640. Geduldig against Aiello.

0:04:00.0 Andrew Parsons: Hey everyone, this is not Leon. It's Andrew Parsons from Prologue Projects. I'm filling in for Leon while he's away. On this episode of 5-4, Peter, Rhiannon, and Michael are talking about Geduldig v Aiello. This is a case from 1974 that centers on California's unemployment insurance scheme. It provided compensation for people who missed work due to a wide array of health issues, ranging from heart attack to cosmetic surgery. Nearly everything was covered, except...

0:04:31.1 Speaker 4: The sole exclusion under the program is the exclusion for pregnancy and birth-related disabilities.

0:04:38.2 Andrew Parsons: The state of California argued that excluding pregnancy under the program is not a violation of the Equal Protection Clause. And the court agreed. This is 5-4, a podcast about how much the Supreme Court sucks.

0:04:55.9 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have interrupted the arc of history, like Michael's dogs interrupting our recordings.

0:05:06.5 Rhiannon: Sometimes unbeknownst to us.

0:05:10.6 Peter: Yes. I'm Peter. I'm here with Rhiannon.

0:05:11.9 Rhiannon: Hey. Hello.

0:05:13.7 Peter: And Michael.

0:05:14.5 Michael: Hey, everybody. Rhiannon just got to meet my dogs just recently.

0:05:17.8 Rhiannon: I did. I've just gotten back last night from spending a wonderful weekend with Michael and Michael's wife. My partner came as well and one of my best friends just because.

0:05:29.5 Michael: Came Along as well.

0:05:33.5 Peter: Nice. Yeah. We've now both met Michael's dogs. Which means the podcast really like we really are good friends.

0:05:39.6 Michael: That's right.

0:05:40.5 Peter: We're not faking it for the listener.

0:05:42.3 Rhiannon: No. We're thousands of miles apart and we hang out.

0:05:44.3 Peter: We've both independently been to Albuquerque.

0:05:48.4 Rhiannon: That's right.

0:05:50.1 Peter: To visit Michael. Think about the level of friendship that entails to go to Albuquerque. Today's case, Geduldig v. Aiello. This is a case from 1974 about gender discrimination. When you hear that sentence, a case from 1974 about gender discrimination, you should be on high alert. The state of California had a disability benefits program that expressly excluded injuries and illnesses caused by pregnancy. So some women brought some legal claims arguing that this was a violation of the Equal Protection Clause because naturally this provision functions disproportionately to disqualify women from receiving disability benefits. So you know, discrimination based on gender done by the state classic equal protection violation.

0:06:50.1 Rhiannon: You think?

0:06:51.5 Peter: Unless you're the Supreme Court in 1974. They say no it's actually not. It's actually okay.

0:06:57.9 Rhiannon: That's right. You know, when we're talking about this case just to kind of jump in a little bit. It's 1974. I just feel like we need to say it again. There's some archaic. There's very sort of traditional. There's some very sort of old notions about gender and sex. It is a lot of language in this case and maybe some language that will be even repeating because we're talking about what they're talking about in the case. But a lot of language that really just amounts to gender essentialism. The case is really about women being pregnant, even though we know, of course, that it's not only women who can get pregnant and calling things sex discrimination. This debate, the question is about sex discrimination when really, you know, today we would call this gender discrimination.

0:07:48.8 Rhiannon: And the law in a lot of ways still today calls this sex discrimination. But I think as we're working our way through this episode, talking about this case, listeners, you might think of "sex discrimination" as in this case, discrimination against cis women and people assigned female at birth discrimination against people who can get pregnant. The court is using the gender binary saying women as if only women can get pregnant. But to kind of bring it into our contemporary understanding, it's more like discrimination on the basis of gender. It's more like discrimination on the basis of certain biological capacities. The capacity to be pregnant. And this case is really about the way our society uses biological determinants to assume gender because they're only assuming throughout the case they are assuming only women get pregnant.

0:08:40.3 Rhiannon: And therefore, it's sex discrimination on that basis. So, jumping in, this is, like Peter said, this is about a California law, sort of California disability insurance scheme. The state of California was concerned in the '40s '50s '60s, as they were building this statutory scheme, the state of California was concerned about economic hardships that workers experience when they are temporarily unable to work due to, you know, a mental or physical condition. Right? They created a comprehensive disability insurance program. And the purpose of that insurance program was to "compensate in part for the wage loss sustained by individuals who are unemployed because of sickness or injury, and to reduce to a minimum the suffering caused by unemployment resulting there from.

0:09:30.5 Peter: It's a classic, I don't wanna say standard because it's not exactly standard, but it's a relatively common disability program. Right. If you don't have private insurance and you become so disabled that you cannot work, many states have programs that allow you to apply for disability benefits to keep you on your feet in the meantime.

0:09:52.2 Rhiannon: Right? Exactly. And the law in California further stated that the law itself should be construed liberally, "In aid of the declared purpose to mitigate the evils and burdens, which fall on the unemployed." I'm emphasizing the sort of history and the purpose of the law here, because the law itself says it should be construed liberally. To reach the purpose, which is to help people economically when they cannot work temporarily because of a physical or mental condition. So the law in terms of specifics and the disability provisions that were provided by the law, it provided for up to 26 weeks of benefits for a wide range of disability, or, you know, various incapacities including cosmetic surgery, vasectomy, et cetera, all kinds of things that would temporarily incapacitate a person from working at least.

0:10:48.0 Michael: Yeah. Getting your wisdom teeth out.

0:10:49.3 Rhiannon: Yeah. All sorts of stuff. The law provided that you would get disability payments during your time out of work up to 26 weeks. Now, there were literally only four exclusions for "disabilities" for which the law said you could not get your benefits heads up for some absolutely wild language here. Number one, a dipsomaniac, this is a very old term For somebody who is an alcoholic.

0:11:23.3 Peter: God, why did we abandon that term?

0:11:26.4 Rhiannon: Drug addicts, sexual psychopaths.

0:11:30.1 Peter: Yeah. I dated one of those in law school folks.

0:11:33.3 Michael: Sexual psychopaths just makes me think of like criminal minds if you guys ever watched it.

0:11:38.2 Rhiannon: Oh, Yes, absolutely.

0:11:39.8 Michael: Yes. And that's like, that's like their favorite way to describe the answer. That it's a sexual psychopath.

0:11:45.4 Rhiannon: Yes. And number four. Number four, you're excluded from disability payments if you have any disabilities resulting from a "normal pregnancy. So let's just pause, let's unpack.

0:12:00.2 Michael: Heroin addiction, alcoholism, serial killers, and people who are pregnant.

0:12:09.5 Rhiannon: Right The first three are problematic. Also, the law said that you were excluded from getting disability payments. If there was a court commitment that you were a dipsomaniac, a drug addict or a sexual psychopath. Note that, those are legal labels used at the time for criminals. Those are kinds of people, a class of people. The law is saying don't qualify for benefits. Also, a second note just about those first three, dipsomaniacs drug addicts, sexual psychopaths at oral argument, the attorney for California conceded that those court orders labeling people as such were rarely used anymore. So that exclusion didn't in fact exclude anybody from disability payments. Which brings us to the second point that in reality that means the only condition excluded from benefits is pregnancy. The only thing.

0:13:07.7 Peter: Although I do wanna say one day we'll cover the lack of Equal Protection Clause jurisprudence that protects sexual psychopaths, our nation's treasures.

0:13:19.0 Rhiannon: So finally, third, I wanna just say something about "normal pregnancy." You know, setting aside, again, the archaic language of, calling things normal and abnormal. California changed its law to allow for benefits to be granted when someone had what we might call today like a high risk pregnancy. A pregnancy that was accompanied by additional medical issues or diagnoses, stuff like that. So when this case originally went up, California did not allow benefits for people who had to take time off of work due to high risk pregnancy. But California changed their law as this case made its way up the appellate system and to the Supreme Court. So for example, one of the original plaintiffs here had an ectopic pregnancy. She needed emergency surgery. She was instructed by a doctor not to work for a month. Originally she was denied these benefits in California, but under the changed law, before the Supreme Court heard the case, she would have gotten those benefits. And in fact, California did pay her for them. In a back pay sort of way. So what the court is dealing with here is only unemployment or, disability resulting from a "normal pregnancy" which they really mean is a pregnancy not accompanied by additional medical conditions or complications or emergency.

0:14:39.7 Peter: Or Like unusual complications. Because certainly every pregnancy comes with a, you know, certain set of like "complications".

0:14:48.7 Rhiannon: Right. Absolutely. And that was the case for the plaintiff, Jacqueline Jaramillo, who was left as the only plaintiff because she had what the court deemed "a normal pregnancy". She had a normal vaginal delivery after which a doctor ordered a period of rest, a period of time where she was not working. So she couldn't work. And California denied benefits during that time period. So that's what the Supreme Court is analyzing, whether for a normal pregnancy, if you are denied benefits under this statutory scheme, if that's a violation of the 14th Amendment Equal Protection Clause.

0:15:28.4 Michael: Yeah. And before we get into the opinion, I just wanted to talk a little bit really quickly, like about this time period. I think it's easy to think of the '70s as the recent past and imagine it somewhat like the present, but I think it's important to remember like when this case came down, women couldn't get credit cards in their name. They were still a year away from that. They were brand new in the workforce. And the idea of how to handle someone who was pregnant in the workforce was pretty new. Right? The sexual revolution was still ongoing. Like we were in the tail end of it, but it was still happening. So I think it's important to remember that this is the early days of women joining men as like equal economic actors. And immediately getting shot down, you know?

0:16:23.3 Peter: Right. And the early stages of women moving into the workforce. Which is what this is really about. The idea that you would have a job. Get pregnant, not be able to work for some period of time and go on disability for that period of time. That's sort of aligns with an understanding of women as having a rightful place in the workforce. And so you're sort of getting this old school worldview coming from the court here.

0:16:52.1 Rhiannon: Exactly.

0:16:53.7 Peter: So like Ree says, the basic question is, does carving out "normal pregnancy", from this disability law functionally discriminate against women in violation of the Equal Protection Clause? What the court does first is just talk about like the economics of the insurance program. Obviously, if California starts paying out benefits for pregnancy related disabilities, that would cost more money, might require them to change the structure of the program.

0:17:24.5 Peter: The state estimates the extra costs at a hundred million a year, which they'd have to compensate for by changing contribution amounts or the allocation of other benefits. Right. And the court sort of expresses their hesitation to get involved in such matters, which I guess is like fair in a vacuum. They're not insurance experts after all.

0:17:44.6 Rhiannon: Sure.

0:17:45.9 Peter: But then they get into the question of whether this is unlawful discrimination. They say, "We cannot agree that the exclusion of this disability from coverage amounts to invidious discrimination under the Equal Protection Clause. California does not discriminate with respect to the persons or groups which are eligible for disability insurance protection under the program." So they're making a technical point here. They're saying, look, women are still eligible for benefits, they just can't receive benefits related to pregnancy. And neither can men.

0:18:19.5 Rhiannon: Whoa.

0:18:20.5 Peter: Right. That's a key part of their argument here. It's not technically discrimination because men can't receive benefits for pregnancy either. I gotta say it feels like they're slicing it a little bit thin here, we're starting to get into like eyebrow raising territory. The court says, "There is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not." So again, just arguing that both men and women are forbidden from applying for pregnancy related disability. So it's not discriminatory. This is the rich and poor like argument.

0:19:03.5 Rhiannon: Exactly.

0:19:04.1 Peter: And it reminds me of when people would argue against gay marriage by being like, "It's not discrimination because both straight and gay men are free to marry the opposite gender."

0:19:15.0 Rhiannon: Right, right, right. Exactly.

0:19:16.1 Peter: You're like, "Yeah, like, oh, you got me. This is not discrimination. I guess."

0:19:24.1 Peter: Purposefully misconstruing what we understand discrimination to be.

0:19:29.6 Rhiannon: Exactly. And that's what we're saying. This is not a woke pregnancy does not mean women. This is bad faith abstracted.

0:19:37.8 Peter: Yeah.

0:19:37.9 Rhiannon: Technical and formal bullshit so that the court can insult you by saying this is not discrimination.

0:19:44.6 Michael: Yeah.

0:19:45.6 Peter: The court says that just because a medical condition is experienced solely by one biological sex doesn't mean the failure to cover that condition is discriminatory. Essentially, making the argument that, because pregnancy is not a one-to-one proxy for sex. This is not technically sex discrimination. What's funny about this is that, with our modern understanding of gender, they have a better argument. But [laughter] in Potter Stewart's mind, Potter Stewart writes the majority here, in his mind, only women can get pregnant. This is something that only afflicts women. And yet he does not consider this to be like gendered as a policy. [laughter]

0:20:25.4 Rhiannon: Exactly. Yeah. You're almost there, Potter. You're so close, bro. [laughter]

0:20:30.2 Michael: Not all woman can or will get pregnant, Peter.

0:20:33.1 Rhiannon: [laughter] Right.

0:20:33.3 Michael: Maybe you're making some assumptions.

0:20:36.7 Peter: [laughter] What he says is that the law does not discriminate between men and women. It discriminates between pregnant and non-pregnant people. And that's different. And again.

[chuckle]

0:20:48.6 Peter: Potter Stewart is not being a woke trans inclusive king here.

0:20:50.4 Rhiannon: No.

0:20:50.7 Michael: [laughter]

0:20:51.2 Peter: He's just being a dick.

0:20:52.3 Michael: Yes.

0:20:52.8 Peter: As far as anyone in 1974 is concerned, the population capable of getting pregnant is a hundred percent female. All of this is designed to create a distinction between what this is and "sex discrimination".

0:21:08.2 Rhiannon: Exactly.

0:21:09.0 Peter: And the reason for that is that there's sort of a legal argument happening under the hood here, and it's about what level of scrutiny the court should be applying in this case.

0:21:18.4 Michael: Yes.

0:21:18.9 Peter: Generally, when the court is analyzing the constitutionality of a law, they use what's called rational basis review, which means they look at whether the law is rationally related to a legitimate government interest. It's a famously low level of review. Nearly every law passes it, but if the law discriminates based on gender, it should receive what's called intermediate scrutiny, which is a higher level of scrutiny that the law is much less likely to survive. The reason that the majority is playing dumb and twisting itself into pretzels to say that this law does not discriminate based on sex, is that if they admit that it does, they have to scrutinize it more closely, which they don't want to do.

0:22:01.3 Rhiannon: Yeah. That's exactly right. There were two cases right before this case that the Supreme Court decided that established this idea, even though they might not have necessarily been explicitly calling it, intermediate scrutiny. It established this idea that classifications and discrimination on the basis of sex or gender did call for, did require the court to scrutinize it a little more closely than just asking the government for whatever the fuck reason they could have for having the law. Those two cases are Reed v. Reed, and another case called Frontiero. But I did wanna make a point about in this case, just like you said, Peter, they're trying to get the issue out of the realm of intermediate scrutiny. Because if they had to scrutinize this California insurance scheme more closely, it would be obviously, extremely suspect. It would be a violation of the Equal Protection Clause.

0:22:54.1 Rhiannon: They don't wanna do that. But, if they did scrutinize it more closely, remember the statutory purpose of this law in the law it says, "This law is designed to help with the economic hardship that befalls people who can't work because of a temporary illness, medical condition, et cetera." Women experiencing temporary disability or the inability to work because of pregnancy are as much in need of economic support, as are all of the other workers who are experiencing temporary work disruption. Because of the physical effects of any other condition. If the court was looking at this just a little more sceptically. That is a hundred percent clear. And going back to the argument the court has about, the rational basis here, the state of California does have one rational basis, which is that the cost of this insurance scheme would go up if pregnancy related disability was covered. California says it's concerned with the solvency of the insurance scheme that wouldn't be accepted as rational basis for excluding pregnancy. Because there are tons of sex neutral options. Gender neutral options for insuring the solvency of the statutory scheme of the disability program.

0:24:17.8 Peter: It would be more affordable to not cover women entirely.

[laughter]

0:24:21.4 Rhiannon: Exactly. [laughter]

0:24:23.7 Peter: But we would all have to concede that that is discriminatory. So you can't do it.

0:24:26.9 Rhiannon: Exactly. And if they were concerned about the cost of the insurance scheme, but without discriminating against women, without discriminating against pregnant people, they could exclude other conditions that they currently cover. Voluntary surgeries, cosmetic surgery, whatever.

0:24:47.1 Peter: I'm sorry, but it's very funny. I don't mean to laugh at other people's suffering, but it's very funny that they cover vasectomies.

0:24:52.6 Rhiannon: Yes.

0:24:52.7 Peter: And not pregnancy.

0:24:52.8 Rhiannon: Yes.

0:24:55.3 Michael: Yes. [laughter],

0:24:55.4 Rhiannon: Yes.

0:24:56.2 Michael: Go back to that thing where Stewart is saying, "Men aren't protected against anything that women are not also protected against." And it's like.

0:25:05.2 Rhiannon: It's not true.

0:25:06.7 Michael: That's not true. That's not true. [laughter] There is a dissent. It's okay. It makes a number of the points we've already discussed. It's by Brennan. And there was one little paragraph that I wanted to quote, really quick. He says, "Thus, for example, workers are compensated for costly disabilities such as heart attacks, voluntary disabilities such as cosmetic surgery or sterilization, disabilities unique to sex race such as prostatectomies or sickle cell anemia, preexisting conditions inevitably resulting in disabilities such as degenerative arthritis or cataracts and "normal disabilities" such as removal of irritating wisdom teeth or other orthodontia. Literally anything.

0:26:00.8 Rhiannon: Anything.

[laughter]

0:26:01.9 Michael: That would get you, incapable of working for a short period of time except pregnancy. And so going back to what I was saying before about the time period, this is opening the door for a reason for employers to not want to employ women. Saying, "Well look, they're not gonna be able to work because they're pregnant. And if you consider that, that's not really discrimination. That's you being, prudent. Fiscally." And so this case needs to be understood in that light of women joining the workforce and reactionaries finding ways to keep them out of the workforce. And that's well highlighted. Other than that the dissent... It's okay, but it's very technical and relies a lot on, the precedent's re-describe and saying this should be an elevated level of scrutiny. The dissent does make a point that so much of this is about stereotypes, about people's gender or sex and how we "as a society" think about women or think about pregnant people. Or in modern days, think about say gay people or trans people or other people of minority identities. And the way those stereotypes, inflect the law.

0:27:34.2 Rhiannon: Yeah. And that stereotype idea and the problem with stereotypes based on sex and gender does get developed in the subsequent decades since this case. And is a big part of legal equality analysis today. But we should point out, this case has not been overturned. In some ways the law has developed differently in the Title IX context, in other judicial analysis of other laws and sex discrimination in other contexts like employment. This is a constitutional case. This is about the 14th amendment, and this case has not been overturned. In terms of the 14th amendment holding in terms of what the Constitution says about, discrimination on the basis of pregnancy and that being related to sex or gender discrimination, this case is still good law. And it's a really good example of a process by which we formalized, institutionalized, continue to legalize norms where women are really made to bear the burdens of pregnancy on their own.

0:28:45.1 Rhiannon: As a class women and people who can get pregnant. That as a class, they bear those burdens. That there are expectations, assumptions, stereotypes about how you should act when you are pregnant about motherhood and the role of pregnant people in society. The role of people who have the capacity to be pregnant and bear children. And so what you see in this case is a really good example of the court doing a very technical, formal appearance of equality analysis versus a court taking seriously a substantive analysis of fairness. To get into it, the physical risks that men or assigned male at birth people do not experience, cannot be the benchmark for assessing whether other people are treated equally under the law. [laughter], another way to look at this discrimination that the court, declines to analyze what the insurance scheme does in this case is impose an economic penalty on women who engage in procreative activity.

0:29:58.2 Rhiannon: But does not impose the same penalty on men. What I'm trying to say is that you see here the court making a choice about how it analyzes this constitutional question in a way that a ton of other choices about the analysis that they do would've led to a different result. It is purposeful that it is highly technical, highly formal, highly abstracted from on the ground reality of what it means to be pregnant in the workplace, to be a mother, and the expectations on motherhood having children, et cetera in society. The proper framework should have been and should be the effect of pregnancy exclusions. Not the abstracted classification of pregnant people versus non-pregnant people. The reality of sex discrimination, the reality of gender discrimination, the reality of disadvantages being imposed on women and pregnant people based on their reproductive capacity. That's discrimination on the basis of sex. That's discrimination on the basis of gender when exclusionary workplace policies are based on pregnancy and operate to disadvantage pregnant people to disadvantage women based on stereotypes about what pregnant people, women should be doing.

0:31:18.9 Peter: And to drill down on this a a little bit, what the disability program functionally serves as is a, reminder that there are certain things that the government believes are society's problems that the broader population will help you with. Like getting a vasectomy. If you want a vasectomy, the state will help you out. The state will help you remain on your feet when you do, but if you get pregnant, you are on your own.

0:31:52.7 Rhiannon: Exactly.

0:31:53.4 Peter: And in fact, that is basically the only thing [laughter] you can do. The only "disability" you can have where you are on your own.

0:32:01.3 Rhiannon: Totally.

0:32:01.8 Peter: That is a gendered decision by the state, for the obvious reason that pregnancy disproportionately impacts one gender and is traditionally and historically associated with one gender.

0:32:13.3 Rhiannon: Absolutely. And it's led to an incredibly impoverished equality jurisprudence. Especially on the basis of sex and gender, effects of a normal pregnancy "normal". Can include being sick for periods of time, periods of required bed rest, inability to complete physical tasks that might be required at your job normally, you could have hormonal imbalances obviously, hospitalizations, surgeries, all of that is quite normal in a pregnancy, on top of a period of necessary rest and recovery after pregnancy. Those absences from work, have the same economic hardship on women, pregnant people and their families as do the physical and economic effects men experience for all of the conditions that they get disability payments for under this scheme.

0:33:04.9 Peter: Which is why the only justification that the state can possibly have for this is a justification where they are saying that the difference is that, men belong at work.

0:33:14.6 Rhiannon: Exactly.

0:33:15.7 Peter: And women do not.

0:33:17.2 Rhiannon: Period. There is this great chapter in a larger book. It's a book with something like 10 Supreme Court cases that are about sex and gender and they're rewritten in a feminist perspective.

0:33:31.2 Peter: Feminist judgment, I believe is the book.

0:33:33.6 Rhiannon: Feminist judgment. That's right. And we should say this is no radical feminist retelling of the law. There's some gender essentialism in this book as well. But I read and found the legal analysis by Professor Finley about the historical subordination of women leading to damaging stereotypes really compelling. In that chapter where again, she is writing as if she is a justice deciding this case from a feminist perspective. She says, "An equality doctrine that implicitly says that women can claim equality only insofar as they are just like men, is an impoverished concept of equality. Unable to protect women from the disadvantages they have long suffered because of sex role stereotypes, often based on their biological reproductive, "uniqueness". Being biologically different from men does not have to mean that women should be disadvantaged or subordinated due to their difference. Women are entitled not only to equal treatment with men, but also to equal opportunities for education, employment, and civic participation without barriers emanating from laws and policies that are based on stereotypes about women's "natural roles".

0:34:46.2 Michael: Yeah. And so that's good for teeing up what I've been mulling about scrutiny levels while we prepare for this episode. An analogy might help, imagine you're say, I don't know, a senior attorney. You are mentoring three junior attorneys, and when they turn in work, you've noticed that one is really capable, one is so so capable and one is terrible. When you review the capable person's work, you might just skim it. And the medium attorney, you might give it a good read, but nothing too crazy. And the one who's struggling, you might go over word by word, check all their citations, make sure they're doing everything right, crossing every t, dotting every I. That's the idea behind the tiers of scrutiny. Certain things judges are not skeptical of and they don't require a high burden on the government to justify the laws it has passed.

0:35:47.8 Michael: Some things it's a little more skeptical of, and some things they're very skeptical of. And those get the really intense look. And it's worth asking as a leftist or a liberal or someone with decent values, whether this paradigm has served us well. So much of the last several decades of law in this area has been about expanding the categories of people who get intermediate scrutiny or strict scrutiny. Getting lesbian, gay bi trans queer people into at least intermediate scrutiny, if not strict scrutiny, giving more teeth to intermediate scrutiny. It's worth asking whether we really need to be categorizing people like this, whether making a list of, if you're discriminating based on race, then we are really skeptical. And if you're discriminating based on alienage, we're really skeptical. But if you're discriminating based on gender, we're only kind of skeptical.

0:37:00.7 Michael: Whether this is a, both a morally correct and a practically useful way of approaching equal protection. I don't think equal protection under the law needs to start by drafting up a whole taxonomy of people who live in this country and divvying them up into subgroups. These are undocumented people and these are women and these are trans men and these are black people and these are mixed race people. I don't think that's necessarily the best approach. And some of the stuff we've been talking about, about the gender essentialism is a good example of that. The question here is whether someone who gets pregnant and is denied benefits under a program that will give benefits to literally anyone else. For literally any other medical condition that will keep them from working, whether they are getting the equal protection of the law.

0:38:01.0 Michael: I don't think it matters whether that was someone who was assigned female at birth. There's a trans man is a cis woman. I don't think that's the proper place to start that inquiry at all. But that's what this framework demands.

0:38:19.2 Rhiannon: Exactly.

0:38:19.3 Michael: And you can see the court has tried to work around this in the past, what they call rational basis plus, where they know the law is bullshit in targeting people, but it's people who aren't protected by this paradigm. A classic case being the US Department of Agriculture v. Moreno, which was where like a food stamp law was trying to avoid giving benefits to hippies. And hippies don't get intermediate scrutiny. [laughter] And hippies don't get strict scrutiny. This was rational basis all the way, which is like a the government always wins.

0:38:57.0 Michael: The law always survives. You never get to say it's discriminatory. But the court nonetheless said it was because they're like, "Look, we know what's going on here. We know this is just about hating hippies. And that's not really a good use of government resources, a fair use of government resources. And it's not consistent with saying everybody has equal protection of the law." And circling back to like the analogy I started with, because I think this is how courts think of it. The idea is that strict scrutiny is more demanding, not just on the government, but on the courts themselves. They call it a more searching standard of review, a more exacting one where they imagine themselves doing more work, essentially. Being like, this is asking more of us when we would rather just rubber stamp the government. But having worked for a judge, I just don't find that a very persuasive argument. Like you're just reading papers and making a judgment call [laughter] Like what? It's not like you're actually, they're not actually proofreading something really heavily here. You're reading the briefs and making a decision like either way. It's so stupid. So I think there has to be a better way, and I think this is an area where the left needs to start thinking creatively about what that better way might look like.

0:40:19.0 Peter: Yeah. I mean the, the current system forces you into a discussion about like, is this sex discrimination? Rather than like, who cares? People who can get pregnant and want to get pregnant or are forced into a situation where they must be pregnant and don't have any other options are being discriminated against by this law. They are not receiving the equal protection of the law. So instead of just talking about what that means, we have this like abstract conversation about whether this is technically sex discrimination. It's just silly.

0:40:48.0 Michael: Yeah.

0:40:50.2 Rhiannon: Yeah, yeah. Exactly. And that's another reason why we've talked about this on the podcast before. That's another reason why things like discrimination on the basis of being indigent or being poor is not a constitutionally protected status. And why laws that disproportionately impact discriminate against hurt poor people more than the middle or upper class are not constitutionally circumspect. They're not scrutinized in any sort of way other than does the government have any rational basis, any reason for having this law. And so it's this jurisprudence that says, "Oh, well we don't have a case that says poor people or cis women or trans men are a protected class. So we don't apply the 14th amendment to them the same way we do these other classes of people that we've recognized get this kind of sort of judicial legal skepticism." Inquiry.

0:41:52.9 Peter: So I wanted to talk about what happened after this where this line of cases goes. So shortly after the case drops, the logic of it is applied more broadly to the employment context. Meaning that employers started claiming that discrimination on the basis of pregnancy was not sex discrimination under Title VII, the Federal Employment Discrimination Law. And in 1976, the Supreme Court agreed with them and said, "Yeah, title VII does not protect against pregnancy discrimination," meaning you can just get fired for being pregnant. Legal under federal law. This results in a lot of widespread outrage. And in response, Congress passes the Pregnancy Discrimination Act in 1978, which says, "No, actually you can't discriminate against pregnant people in the workplace. Not okay." But that only closed part of the loophole that this case created that only closed the loophole in the employment discrimination context.

0:42:53.7 Peter: In all other contexts, it's still the legal precedent that discrimination against pregnant people is not technically sex discrimination. And so you had like the Hyde Amendment in the late '70s, which says that Medicaid funds can't be used for standard abortion procedures that gets challenged in courts unsuccessfully. And the plaintiffs can't really bring an equal protection claim because Geduldig has already essentially shut that door. Saying that pregnancy is not sex discrimination, it's not an equal protection issue. And this doesn't like end in the '70s. The last time the court cited Geduldig that I'm aware of was last year when they said, "The court's precedents establish that a state's regulation of abortion is not a sex-based classification and is thus not subject to the heightened scrutiny that applies to such classifications." You can probably guess that was in Dobbs. The case overturning Roe v. Wade cites Geduldig. So this case serves as part of the bulwark that the court uses to fend off claims that anti-abortion laws violate equal protection principles. It's something that resonates in our law to this day. It's not this sort of like artifact of the 1970s.

0:44:08.6 Rhiannon: I think that's right. And I thought of a case that sort of has, it doesn't directly cite Geduldig, but certainly echoes these sentiments. Which is Hobby Lobby. The court saying that employers do not have to include coverage for contraception in the healthcare plans that they provide to employees. If this case Geduldig had turned out differently, if it meant something substantively legally in terms of fairness and real substantive justice for people, that pregnancy discrimination was taken seriously constitutionally, whether you say it's sex discrimination, gender discrimination, or whatever. I wonder if then you have cases like Hobby Lobby, you can willy-nilly say like, yeah, that's fine. There's no problem with that.

0:44:53.6 Michael: Yeah.

0:44:53.7 Peter: Yeah. It's not something that's always cited as much as it's again, just a closed door. Right. It's an argument that you can't make because of this case.

0:45:01.8 Michael: That's right.

0:45:01.9 Rhiannon: Yeah. And thinking more broadly about the 14th Amendment about equal protection analysis, this area of the law, sex discrimination and the 14th Amendment, in some ways you really see the same impoverished development that you see in analyzing race discrimination and what the Constitution requires there. Instead of taking into account the real purpose of the 14th Amendment, the real purpose of the Equal Protection Clause, which was about rectifying structural and legal impediments to equality. Structural and legal imposition of subordination on classes of people. That subordination being justified and based on real differences or stereotypes. Separate spheres that people should be separated people's biological and social "limitations" labels that society imposes on people. We're talking about the social constructs of race and gender. So we have an example here of making this equality analysis just about classification.

0:46:08.4 Rhiannon: Essentially, the majority opinion is saying, "Well, the law doesn't say women, so there's no discrimination here. That's not sex discrimination." But in reality, we're talking about a long history of women's exclusion. Subordination from participation in civic, political, public economic life, everything. A long history of assumptions and stereotypes that men and women operate in separate spheres. They should be separated in terms of the social expectations and their sort of life paths, their destinies, where women take care of children, fulfill their duties as mothers men provide economically and participate in political and social publics. Right. The Equal Protection Clause stands for the proposition that we should be inclusive of that history in analyzing whether a law is discriminatory. And that history should mean that we bring a lot of legal skepticism to laws that have a disproportionate impact on women. And so you see just how sort of reductive it's become completely based on classification rather than this kind of substantive history of subordination rectifying systemic problems. And you see that analysis, we talk about it all the time in race discrimination context as well. The court is doing this sort of across the board.

0:47:28.5 Michael: That's right just the fact that sex discrimination gets intermediate scrutiny. Rather than strict scrutiny is a sort of tacit acknowledgement that the court believes, well, men and women are different. And so sometimes laws should be different for men and women. And that's okay. So we're not gonna like be that skeptical. Right. When we see a law discriminating based on sex or gender.

0:48:01.5 Peter: Before we wrap, I do wanna talk about the gender essentialism of this case and how in our modern context you talk about pregnancy discrimination because the dissent here is basically rolling their eyes a bit at the majority being like, "Come on, only women get pregnant. What are we talking about here?" But given our sort of more nuanced understanding of gender and sex now, how do we have those conversations? Sort of raises a question of how we talk about this stuff as people on the left, people who believe in the validity of trans people and the importance of trans rights. 'cause there's this reactionary argument out there, the argument that you see from turfs, which is essentially, "Well, look, you on the left have embraced the detachment of gender from sex. So now you can't turn around and say that they're related in a case like this."

0:48:51.7 Peter: In other words, once you say that it's not just women who can get pregnant, you forfeit the argument that pregnancy discrimination is discrimination against women. I think it's worth talking about how to respond to that argument, how to think about that argument. And before I do, I also wanna mention that this isn't really an argument about trans people per se. It's an argument about how our understanding of gender has evolved relative to anti-discrimination laws that are the product of an era where we had a much less nuance understanding of gender. That's not an argument about the validity of trans people per se. It's about the intersection of our understanding of trans people and gender with these sort of somewhat antiquated discrimination laws.

0:49:37.2 Rhiannon: Yes. Exactly. Like we have to recognize legally that reproductive freedom, reproductive choice, reproductive justice is inextricably intertwined with sex equality and gender equality. And that necessary intertwining and relationship is why Justice Alito can cite Geduldig in this case in Dobbs Right. About reproductive justice.

0:50:01.1 Michael: That's right.

0:50:01.2 Peter: I think the simple response to that argument is that it's just some cutesy little bullshit discrimination law is not a series of logic traps that you need to get through. When you discriminate against pregnant people, you are discriminating primarily against women because most people who get pregnant identify as women. The existence of trans men, or for that matter, women who don't get pregnant either because they can't or choose not to, doesn't really diminish that fact. To put it in simpler terms, the sort of like discussion about whether this is "sex discrimination" is a sideshow. This is an analysis, a framework that the Supreme Court has foisted upon us in the equal protection context. Where we are analyzing whether or not this is "sex discrimination" rather than just analyzing whether or not it is discriminatory, period discriminatory against women, perhaps discriminatory against pregnant people for sure. That matters. And that should get an equal protection analysis. And the court just sort of ignores that because they're operating within these very narrow frameworks.

0:51:17.7 Michael: Yeah. And not just an equal protection analysis, but something with more bite than the sort of rubber stamp review that they're giving it.

0:51:28.7 Peter: And if you utilize the argument made by the court here, what you're really doing is embracing, defining discrimination as narrowly as possible. Embracing analysis where you can discriminate against a group as long as it's not technically all of them. Or as long as you're also kind of hurting some other people too. That can't be what you want discrimination law to look like at the end of the day. And that's why even with a sort of trans inclusive understanding of what sex and gender are, this case is still bullshit.

0:52:06.4 Rhiannon: Exactly.

0:52:07.3 Michael: That's right.

0:52:08.4 Peter: And Michael was talking about the failure of the like scrutiny analysis and how it's based on these classifications, and part of what conservatives have done with that system is use it to pit groups against each other. Right. This group is receiving benefits while this group is not.

0:52:28.0 Peter: African Americans receive benefits in applications to college while Asian Americans do not. They turn that sort of classification system into a weapon to pit groups against each other. And that's not what our discrimination law should be built around. Our discrimination law should be built around solidarity. Our discrimination law should be built around the idea that each person across every group deserves equal access to dignity and safety to the benefits of citizenship. And that I think involves rethinking how we approach these questions and throwing out this like hyper-technical bullshit that the court's been doing for 50 years. And reconceptualizing it on terms that make sense to people on the left. Because we have really allowed the conservative Supreme Court to tell us what equality under the constitution means. And that's just not a tenable status quo.

0:53:33.2 Michael: Right.

[music]

0:53:41.2 Peter: All right. Head on over to fivefourpod.com/support if you want to subscribe.

0:53:48.2 Michael: That's right.

0:53:49.6 Peter: Follow us on social media at 5-4Pod. We'll see you next week.

0:53:52.8 Michael: Bye everybody. 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website 5-4pod.com. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Oh there's Petra [laughter] She's so cute. [laughter]

0:54:31.5 Peter: Hot Kittens. The way they like look up the wall.

0:54:36.6 Rhiannon: She'll fucking climb it. So, yeah. No, she's analyzing.

0:54:37.6 Peter: That is crazy that she just climbed the wall.

0:54:40.7 Rhiannon: Claws in drywall. Straight up free solo.

0:54:44.9 Michael: Yeah.

0:54:45.2 Rhiannon: Goes up.

0:54:45.3 Peter: That's so good. [laughter]

0:54:47.8 Rhiannon: Wild.