For a long time, what Alexis de Tocqueville called the American “spirit of freedom” was balanced by settled norms that guided young men and women toward domestic life. These norms added up to a sexual constitution that rested on the foundational assumption that men and women had different and complementary roles. Tocqueville recognized that this constitution, which emphasized the virtues of restraint, service, and obedience in marriage, tempered America’s otherwise fissiparous individualism.
The old sexual constitution was not static—the male–female dance in America took different forms at different times—but it was partly patriarchal and partly democratic. Tocqueville observed that American marriages were “democratic” in the sense that they did not perpetuate the rigid hierarchies of the Old World, nor did they give unlimited power to fathers and husbands. Nevertheless, American husbands and wives did different kinds of work. The husband functioned as the public face of the family and was the titular head, while the wife was responsible for the domestic sphere and buttressed the husband in his endeavors in the workplace and public sphere. The patriarchal nature of this settlement, however, is evident in the simple facts that men, not women, were expected to propose marriage and head families and that wives took their husband’s surnames.
But for two generations we’ve been undergoing a far-reaching transformation of the male–female dance. The foundational premise of the old sexual constitution—that men and women have different and complementary roles—is widely repudiated. A great deal has been written about the cultural forces driving this transformation, from the colonizing of family relations by the market mentality to the sexual revolution. What remains largely unexamined, however, is the role of government power in the replacement of the soft patriarchy that formerly guided men and women toward stable, complementary roles. That power has been deployed on behalf of a sexual constitution designed to promote sexual interchangeability.
Put simply: Civil rights law and related court decisions have criminalized the old sexual constitution. The Gloria Steinems and Hugh Hefners did not simply convince mainstream American society to discard the time-honored patterns. Our society was transformed because feminist ideas became compulsory, backed up by the threat of legal punishment for those who continued to act as if men and women were different.
Understandably, few wish to make such a blunt observation. Americans glorify civil rights laws and cheer the country’s battle for racial justice. But the Civil Rights Act of 1964 was not just about race. It also prohibited discrimination on the basis of sex. It thereby established the main mechanism for the public deconstruction of sex roles within the family. Since 1964, civil rights laws, infused with anti-discrimination ideas and propounded by interest groups and intellectuals, have reshaped sexual relations in America. Today’s basic assumptions about sex, sexual relations, gender, and family life are not the result of public persuasion or the triumph of feminism in the “marketplace of ideas.” They are the creatures of what Jennifer Roback Morse calls the sexual state, products of civil rights laws set in place decades ago.
Anti-discrimination laws are not the sole cause of the reshaping of sexual relations, of course. Already in the nineteenth century, public schooling had transferred a main function of domestic life, the education of children, to the state. Divorce by mutual consent had become common before the sexual revolution of the 1960s. Obscenity regulation was loosened. All of these reforms went with the grain of democratic individualism, which, as Tocqueville recognized, runs against the habits and virtues necessary for family life.
But anti-discrimination dramatically amplified this trend. America’s historic sexual constitution shaped men to be community leaders, responsible providers, and husbands, and encouraged women to prioritize homemaking and motherhood, though many still worked. Employers reinforced this constitution. An estimated 65 percent of all employers and more than 80 percent of industrial companies paid family wages to their largely male workforces in 1960, according to Allan Carlson’s research. In this economic arrangement, women were not obliged to work outside the home, nor were children sent to day care. Want ads would often specify the need for male applicants, whereas other jobs would seek female applicants. The culture dovetailed with employment practices. Churches reinforced the man-at-work and woman-prioritizing-home pattern, as did advertisers, television, and Hollywood generally.
Civil society developed institutions that presumed the male–female difference. Men-only clubs catered to businessmen, while female organizations such as the League of Women Voters drew on the philanthropic ambitions of well-to-do women. There were Boy Scouts and Girl Scouts. Boys played sports. The sexes often mixed, but few doubted that boys required different outlets and activities than did girls, partly because married men and married women fulfilled different social needs and patterns.
A restrictive legal infrastructure sometimes supported the old sexual constitution. In some states, laws prohibited women from entering certain professions. (Illinois common law from the nineteenth century prevented women from earning licenses to practice law in state courts, a prohibition the Supreme Court blessed in Bradwell v. Illinois [1873].) This was not a “barefoot and pregnant” sexual constitution, as many feminist critics claim, nor did it rest on any notion that women could not do such jobs. Just over half of four-year colleges and universities enrolled women in 1900, a number that jumped to nearly two-thirds by the end of World War I. But society tilted toward educating men for leadership, in order to prepare them for public leadership and their roles in family life. Many Ivy League schools did not admit women until the 1960s or 1970s. Medical schools and law schools trailed undergraduate institutions in going co-ed.
The old sexual constitution is now illegal and stigmatized in nearly all its aspects. It has been replaced by an anti-discrimination sexual constitution.
The anti-discrimination sexual constitution rejects the central assumptions of its predecessor: the ancient convictions that men and women are different, that this difference justifies distinct sex roles for the sake of orderly marriage, and that society should support each sex in best fulfilling those roles. In its place, we are urged to organize society around the premise that “women, first and foremost, are human beings” who “must have the chance to develop their fullest human potential” and come into “full participation in the mainstream of American society,” as the 1966 National Organization for Women’s Statement of Purpose reads. This premise propounds a sexless, egalitarian understanding of “human dignity.” Men and women are not different in meaningful ways, and any social pattern that presumes difference amounts to wrongful discrimination. Guided by this assumption, the anti-discrimination sexual constitution seeks to destroy social support for different sex roles in society and the family. All institutions must be rebuilt on the basis of a feminist equality.
The first ambition of the anti-discrimination sexual constitution was to encourage women to enter the workforce through the promotion of equal pay, affirmative action for women, public support for day care expenses, and reform of workplace mores.
The Equal Pay Act of 1963, which prohibited employers from supporting the traditional family with higher pay and easier advancement for male heads of households, marked the beginning of this effort. More would remain “to be done to achieve full equality of economic opportunity” for women, said President John F. Kennedy after signing the bill into law. The next step was taken in the 1964 Civil Rights Act. Title VII of that act prohibits sex discrimination in hiring and promotion, and it created the Equal Employment Opportunity Commission (EEOC) for enforcement. In 1972, Congress extended the protections of Title VII to government employers and to businesses with fifteen employees (previously the limit was twenty-five).
Congress later added tax incentives for working mothers. President Richard Nixon vetoed the creation of federally funded public childcare centers in 1971. He worried that they would create “communal approaches to child rearing over against the family-centered approach.” Instead, Nixon endorsed programs in which middle- and upper-class families received tax deductions for day care expenses. (In time, poor families would receive government programs for childcare, such as Head Start.) Upper-middle-class feminists wanted public day care; they got public subsidies for private day care.
Aggressive affirmative action and set-aside programs aimed to increase female participation in the economy. Goals that at least 5 or 10 percent of government contractors be minority- or women-owned businesses became common. Several agencies exist within federal departments to promote such contracting. Public-sector affirmative action programs for women were blessed in Johnson v. Transportation Agency, Santa Clara County (1987), in which the Court ruled that being female could be used as a plus factor in determining promotions. Such programs operate in the private sector as well, where the specter of lawsuits encourages employers to achieve numerical goals that demonstrate the absence of discrimination.
Family-friendly employment practices now run afoul of civil rights law as defined by Phillips v. Martin Marietta Corp. (1971). The Martin Marietta Corporation would not hire mothers with young children, but it would hire similarly situated men. Ida Phillips, a mother of seven, wanted a job there, was denied, and sued under Title VII. The district court judge defended Martin Marietta’s right to discriminate on the grounds that “the responsibilities of men and women with small children are not the same, and employers are entitled to recognize those different responsibilities in establishing hiring policies.” The Supreme Court, however, reversed the decision. In effect, the Court held that hiring practices must not reinforce social norms that establish male and female responsibilities in family life.
The Phillips case points to the second ambition of the anti-discrimination sexual constitution: the legal effort to eradicate stereotypes. Under Phillips, private companies that acted as if men and women had different responsibilities within the family were said to operate on the basis of benighted stereotypes. Reed v. Reed (1971) and Frontiero v. Richardson (1973) applied the anti-discrimination principle to end public support for sex roles within the family. Reed concerned a dispute between a separated couple over who would administer the estate of their deceased son. In its decision, the Court held that laws based on the assumption that husbands and wives have different roles within the family employed “inaccurate stereotypes of the capacities and sensibilities of women.” Frontiero concerned benefits for spouses of military officers, whereby civilian males married to deployed women received fewer benefits than civilian wives with deployed husbands; the Court broadly ruled illegal any effort to reinforce sex roles through government benefits. Laws giving women greater benefits reflected a “romantic paternalism” that put, as the Court writes, “women, not on a pedestal, but in a cage.”
In United States v. Virginia (1996), anti-stereotype reasoning became a constitutional mandate under the equal protection clause. The publicly supported Virginia Military Institute had been all-male since its inception before the Civil War. Women sued, claiming that the existence of an all-male public institution violated the Fourteenth Amendment’s equal protection clause. In response, Virginia created an alternative institution for female students. The lawsuit claimed that this measure was insufficient. The state of Virginia faced a challenge: Does this sex-segregated institution provide women the exact same opportunities, both during schooling and afterward, as a sex-integrated school? Faced with an “exactly the same” standard, Virginia was unable to argue that VMI’s mission was to educate disciplined gentlemen and effective leaders, and that a single-sex environment was integral to achieving that goal, because the presence of women changes the dynamics of a military institute.
A loaded question yielded a preordained decision. Justice Ruth Bader Ginsburg, writing for a nearly unanimous court (only Justice Scalia dissented), held that no “exceedingly persuasive justification” existed for single-sex institutions. Sex classifications were dismissed out of hand as an “overbroad generalizations about the different talents, capacities, or preferences of males and females.” Single-sex schools are permissible only if they, in Ginsburg’s words, “dissipate, rather than perpetuate, traditional gender classifications.”
Ginsburg’s opinion clearly states the ambition of the anti-discrimination sexual constitution. We may not rest until every institution in society has been reformed to blot out the central assumption of the old sexual constitution: that our social norms should register and reinforce the idea that men and women are different. This project culminates (for now!) in the Supreme Court’s holding in Bostock v. Clayton County (2020) that transgender individuals must not be discriminated against, a decision that requires us to affirm that men can become women and women can become men—an obliteration of any meaningful distinction between men and women.
Title IX of the Education Amendments is now used, along with other efforts at cultural transformation, to deconstruct stereotypes in education and beyond. Gone are the days when Title IX regulations concerned classroom education. Instead, as R. Shep Melnick contends, “sexual stereotyping—which can include virtually all conventional thinking about sex and gender—must be identified, condemned and corrected” under Title IX. Failure to deconstruct the old sexual constitution opens one up to litigation and federal investigation.
The third ambition of our civil-rights sexual constitution has been to use the anti-discrimination principle to police the male–female dance. In Meritor Savings Bank v. Vinson (1986), the Supreme Court held that a hostile workplace could be a form of discrimination. Employers became responsible for ensuring, as the EEOC writes, that the “purpose or effects” of employees do not create “a work environment that would be intimidating, hostile, or offensive to reasonable people” (my italics). In other words, since the subjective perceptions of aggrieved employees became the standard for sex discrimination, companies would have to monitor male–female interactions in the workplace, ensuring that nothing untoward occurs.
The old sexual constitution governed male–female interactions in public and private settings. Men were to respect women, taking off their hats and opening doors. Women were expected to exercise a modesty that limited their sexual appeal and kept men in line. Without doubt, the old sexual constitution was concerned to prevent hostile or offensive workplaces. In corporate offices, men were fired for womanizing, and women were fired for crossing the line that separated innocent flirting from dangerous temptation.
In this regard, today’s “hostile environment” legal standards sometimes function in continuity with older practices. Yet they are overseen by human resource departments. “Hostile” has an expansive meaning in the anti-discrimination sexual constitution. It includes environments in which old “stereotypes” are in evidence or allowed expression. As a result, employers are motivated to become active in stamping out even the most vestigial manifestations. Corporate parties invite employee “partners” rather than spouses, committees have “chairs” rather than chairmen, and so forth.
An important change in the law has amped up this motivation. Before 1991, legal remedies under the Civil Rights Act were compensatory—Ida Phillips could only have gotten a job and back pay. The 1991 Civil Rights Act, signed by President George H. W. Bush, allows employers to be sued for emotional distress and punitive damages under Title VII. Filings skyrocketed and damages soared. Since many small annoyances could accumulate into a hostile work environment, employers are now motivated to police employees constantly. Human resource departments provide regular sex-sensitive training sessions to insulate companies from sexual harassment lawsuits. The result is a regime-mandated, privatized civic education program throughout corporate America that seeks to deconstruct sex stereotypes. In this way, the 1991 Civil Rights Act recruited employers to enforce the anti-discrimination sexual constitution.
The changes effected by the anti-discrimination regime are significant. Under the old sexual constitution, men dominated the public sphere and many workplaces. Women characteristically worked in feminine professions. Public opinion supported a woman’s modesty. The sexual division of labor was accepted. Women were thought of as opaque, anxious, and mysterious. They were divided into marriageable “good” girls and unmarriageable “bad” girls. Men were heads of families and leaders of society. Such features had negative effects on both men and women—no settlement is perfect by any means. But it gave order to the lives of men and women and coordinated them in a complex dance that, more often than not, led to marriage, children, and at least a modicum of domestic happiness. Marriage showed men and women how their different interests could converge in a life well lived.
This order has been demolished. The problem is this: We have replaced the old “stereotypes” with new, confused ones. Men are thought to be scum. Independent women are taught to have interests that are difficult to reconcile with men and marriage. Education and careers come first. Overcoming old stereotypes becomes the new stereotype. Marriage is delayed. Childbearing is deferred.
In politics and economics, a selective approach to sexual parity reigns. The Ruth Bader Ginsburgs enjoy glorious careers, while working-class women continue to labor in traditional feminine professions. America’s elite urge “equity” among CEOs and engineers, but not so much among plumbers and long-haul truck drivers. No real effort has been made to support part-time work for mothers. It’s a taboo to recognize the temporary nature of employment for young women: Female graduates from medical school will spend fewer years in practice than male graduates. Sexual double standards have yielded to no standards at all, or to ever-shifting, legalistic ones keyed to anti-harassment conceptions. The sexual division of labor in marriage has devolved, for many, into living alone or eating out. Having standards is “slut-shaming.” Is it any wonder that men and women are restless?
Forming a household and having a child make demands on both men and women. But those demands fall differently according to sex, not just materially and biologically, but emotionally as well. It is for this reason that a sexual division of labor is found in every traditional way of life (and still lingers, to our embarrassment, under our anti-discrimination constitution). Technology and the vast wealth created by modern economies have changed the shape and intensity of those demands, but they have not eliminated them—or effaced the different ways in which they fall on men and women. Sadly, few today are allowed to help the young negotiate these demands.
Anti-discrimination ideology is based on a hyper-individualistic conception of what it means to have a successful life, especially for women. Life is about realizing my talents, dreams, and ambitions. The ideology adds a further dogma: If I’m a woman, then the “system” is against me. The “patriarchy” is holding me back. The anti-discrimination sexual constitution encourages women to “see” bias, misogyny, and patriarchy lurking everywhere. Even a man’s loving support for a woman who prioritizes motherhood over career is sometimes stigmatized as male chauvinism. Today’s man is permitted to support a stay-at-home wife, but he should never say he expects to be the breadwinner, and certainly not that he expects his wife to stay at home. Expecting men to provide becomes “pedestalism.” Manliness is depicted as “toxic.” Disparities to the disadvantage of women are immediately suspect—and must be remedied through law or policy. Merely suggesting that girls might consider becoming mothers and wives someday will be greeted with howls. Women are encouraged to celebrate their divorces and abortions.
American women, increasingly sensitive to discrimination, often make frivolous claims of discrimination without penalty. In most years since 1992, the EEOC has received between 23,000 and 30,000 sex discrimination complaints and more than a thousand complaints under the Equal Pay Act. Very few complaints have merit. The EEOC pursues fewer than 2 percent of such cases per year—and this from an agency that is tasked with finding discrimination.
Increasing numbers of women have come to believe in a worldwide patriarchal conspiracy against female opportunity. A 2017 Pew poll found that more than 40 percent of American women claim to have been discriminated against. Numbers have risen sharply since 2017. Fifteen years ago, a majority of Americans believed that women enjoyed equal opportunity; today, a majority think they don’t. The more time women spend at a university, the more often they believe they experience workplace discrimination: Fifty-seven percent of women with post-graduate degrees claim to have been discriminated against, compared with only 39 percent of women with less than a college degree. Nearly 60 percent of American women think that the country has not gone far enough to secure equal rights for women (42 percent of men agree).
Relations between women and men deteriorate as women become more suspicious of men’s motives. In 1970, 49 percent of women believed that “men’s egos require that they put women down.” Thirty-five years later, that number was 58 percent. Over the same period, the number of women who believe that “all a man is really interested in is his career, not his family” went from 39 percent to 56 percent. These perceptions—that women are victims, men victimizers, and more must be done to solve the problem—shape the way teachers, and even parents, form children.
The never-ending hunt for discrimination shapes how women and men see the world. Not surprisingly, fewer marriages are forming today, and childlessness is spreading. Twenty-five percent of forty-year-olds were unmarried in 2021, up from 20 percent in 2010 and 6 percent in 1980. The number of childless women will probably exceed an unprecedented 30 percent for women born after 1989, revealing that marriage and parenthood are lower priorities for rising generations than they were for earlier ones. For the first time, young men are attending churches in greater numbers than young women. Women, especially white women, are more likely to be religious nones than men in Gen Z.
The same hunt has had negative effects on female psychology. Studies of psychological traits show that women generally react with greater anxiety to everyday phenomena than men do. The assumptions that underlie the anti-discrimination sexual constitution, combined with the political environment of crisis, only compound female anxiety and insecurity. As Jonathan Haidt shows, the rapid decline in mental health among women under thirty-five took place first among young liberal women and affects them most deeply. A 2020 Pew survey reports that more than 50 percent of liberal women under twenty-nine years old claimed to have been diagnosed with a mental condition. Haidt quotes Jill Filipovic: “There are tremendously negative long-term consequences, especially to young people, coming from this reliance on the language of harm and accusations that things one finds offensive are ‘deeply problematic’ or even violent.”
The anti-discrimination sexual constitution contributes to political polarization as well. The battle of the sexes turns political, and the interests of men and women become increasingly difficult to reconcile with marriage. As women become sensitive to the experience of discrimination, they vote for left-wing parties that advocate ever greater expansion of civil rights. A supply of sex discrimination must rise to meet this political demand. Men vote in the other direction. Women, and especially young single women, are the backbone of left-wing political parties in the modern world (Greens in Germany, the Social Democratic Party and the Left Party in Sweden, the Socialist Workers’ Party in Spain, the Labour Party in Britain, Democrats in America, and the Democratic Party in South Korea), while young men increasingly support parties on the right (AfD in Germany, Sweden Democrats, Vox in Spain, Tories in Britain, Republicans in America, and the People Power Party in South Korea). One-third of American Democratic voters in 2022 were single women.
Have we reached the point where our society can entertain second thoughts about the triumph of the anti-discrimination sexual constitution? Perhaps. There are rumblings of discontent. As Daphne Patai outlines in Heterophobia, the reigning civil rights ideology has revised the sexual dance, and not for the better. Paradoxically (and inevitably), stereotypes are reborn in the fight to achieve Justice Ginsburg’s goal of eradicating all the old stereotypes. “Deeply rooted presuppositions concerning perpetual male aggression and female victimhood,” writes Patai, have turned “complex human relations into occasions for mobilizing the feminist troops against men.”
And many women still want and need husbands. Many more women say they want husbands than can find honorable ones, just as women say they want more children than they have. It is a truth no longer universally acknowledged (but still a truth), that most women want to marry up, which is to say that women are the pickier sex. They want successful men, confident men, marriageable men. But as many on the left are now noticing, the rise of the anti-discrimination sexual constitution corresponds to a decline in marriageable men.
Indeed, more men are less marriageable today. Though earnings for men with less than a college degree have been flat since the 1970s, the deeper cause is to be found in changing social norms supporting male achievement. Girls graduate from high school at higher rates than boys do. Girls get better grades. The same gender gaps emerge in college attendance (women make up more than 60 percent of students on many campuses), college graduation (women earn nearly 60 percent of degrees), and post-college degrees (women earned nearly 62 percent of master’s degrees in 2021). Objectively, men are weaker than they used to be, more overweight than they used to be, and lazier than they used to be. Male workforce participation has steadily declined under the anti-discrimination regime. It is presently under 70 percent, a historic low. Many would like to believe that we can address these problems while preserving the anti-discrimination sexual constitution. But the problem of a lack of marriageable men and other breakdowns in the male–female dance are endemic to the anti-discrimination constitution. Fewer men and women are as lovable as they were in preceding generations.
Americans are proud of our anti-discrimination efforts, and our civil rights regime seems here to stay. All is not well, however, as the statistics above remind us. Elements of the anti-discrimination regime need to be scaled back at the least. Conservatives have refused to think about how to do such a scaling back. That must change. Punitive damages should be capped. Due process should be guaranteed on campus. Free association should be secured, even when it is discriminatory. Pro-family principles should be factored into assessments of fair and equitable employment practices and government policies.
My inclination is to work backward from the fact that a solid majority of women would prefer to work part-time or not at all when they have young children. Statesmen should support these maternal instincts, and champion motherhood as a salutary aspiration. Business owners should, once again, be allowed and even encouraged to support traditional marriage in their hiring, promotion, and working conditions. Many faithful businessmen would like to support female employees differently than they do male employees, so that women may prioritize motherhood and men may be honored as providers. This may mean more part-time jobs for women or flexible arrangements whereby women can mind their children—opportunities and arrangements that may not be available to men. Such practices would be good starts.
Tocqueville recognized that a specifically modern despotism is perfectly consistent with the principles of individualism. He feared that an omnipresent regulatory state would arise to oversee all human relations, including affairs of the heart. Eventually, this democratic despotism would reconfigure the family, weakening its domestic bonds and increasing the dependence of each individual upon the state. The anti-discrimination regime has brought this democratic despotism into our homes and our bedrooms, shaping our minds as much as our practice.
Make no mistake, those who propounded the anti-discrimination regime wanted to dethrone the family in the hearts of Americans. The regime has forced Americans to pretend that the most natural, obvious, and important distinctions in human life are of almost no moment—and that the purpose of government is to prevent us from noticing those distinctions and to stamp out any vestige of their former role in our social norms and practices. As we learn to live with and by such lies, we stop noticing the obvious and important, as the rise of transgender ideology demonstrates. Citizens who live under a regime that requires them to deny reality are no longer free—and they are less able to enter into the male–female dance.
Scott Yenor is Senior Director of State Coalitions at the Claremont Institute and a professor of political science at Boise State University.
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