Since 2015, members of the LGBT community have been able to marry someone from the same sex, but in many states, they haven’t been able to work where they want. Monday’s Supreme Court Bostock decision changed that. Now, not only is firing someone because of who they choose to marry illegal, but so is firing someone based on their self-identified sex.
But I take the victory with a grain of salt: we should be skeptical about how much progress to expect from such decisions. This decision will not ensure our equality — we need more aggressive legislation, including quotas. Look at the race context: the Civil Rights Act of 1964 has unquestionably protected people based on race since its passage, but as the massive mobilization after George Floyd’s death demonstrates, racial equality remains a distant dream.
This is also true for sex. Since the revolutionary sex equality cases brought by then-litigator, now-Justice Ruth Bader GinsburgRuth Bader GinsburgThe Memo: Trump's justices look set to restrict abortion Supreme Court to hear landmark abortion case this week Roe redux: Is 'viability' still viable as a constitutional doctrine? MORE in the early 1970s, we have indeed seen radical improvements in sex equality. But inequality is so pervasive, we don’t even see it. Women still only make 80 percent of what men earn, and black people only make 70 percent of what white people do. Our corporate sector actively promotes how inclusive it is, but it’s a man’s world. Women constitute only 5 percent of Fortune 500 CEOs. There are more CEOs named James than there are women CEOs.
This structural sexism demands reform beyond that of anti-discrimination laws. These laws don’t effectively protect the growing millions of workers who serve as at-will employees and independent contractors. Perhaps more importantly, these laws on their own have not changed who runs the corporate sector and how they decide to populate management. To achieve an “unsexed future” — where one’s sex does not limit one’s life choices — we need more aggressive equality laws, including quotas. The U.S. lags behind other top economies that have adopted corporate board quotas for women. This must change. Only quotas and other hiring targets can reverse the structural sexism that holds us back from achieving true equality for all women and for all LGBTQ people.
Last year, California adopted such a quota. Opponents argue that as humans, we would each like to avoid being treated like a number — we want to matter as individuals. We can pretend numbers don’t matter, but they do, especially in this world which is so driven by data analytics. As I think about the future of my 11-year-old daughter, I know that numbers matter enormously. The boys in my daughter’s class are 19 times more likely than she is to become a CEO. The numbers are similar for Hollywood directors. These numbers aren’t just for the top — women are only 20 percent of board members and even fewer serve as law firm partners.
In countries that have adopted quotas, including the U.K., Canada and Australia, companies must have at least 30 percent women board members, and if they fail to meet that standard they must disclose why that’s the case. Quotas will do more than help women. It will free all of us from the constraints of sex roles. If children see people of all sexes occupying leadership roles in the private and the public sector, they will grow up knowing that their sex will not constrain their choice as to their future. This freedom will also liberate men from the burden of social pressure to make money and to prioritize work over family.
Quotas will liberate us from the presumption that only women can serve as primary caregivers for children. They free all people, including members of the LGBT community, from the binds of gender normativity. Only when we see equal numbers of women leaders will we feel free to choose any future without our sex pushing us toward one path or another. As one scholar suggests, the Bostock decision may signal a move toward undermining affirmative action. This may make quotas seem radical, but when the alternative is resigning ourselves to permanent inequality, they become imperative.
This is the freedom promised by the Supreme Court in the 1982 case Mississippi University for Women v. Hogan, that the law should not allow “no fixed notions concerning the roles and abilities of males and females.” This unsexed world is also the promise of Monday’s Supreme Court decision: a world in which our sex — in whatever form it takes — cannot determine our futures.
Darren Rosenblum is a professor of Law at the Elisabeth Haub School of Law School at Pace University.