Friday, September 14, 2012

Tsesis on Gender and the Thirteenth Amendment

Alexander Tsesis, Loyola University Chicago School of Law, has posted Gender Discrimination and the Thirteenth Amendment, which appears in Columbia Law Review 112 (2012).  Here is the abstract:    
Although the Thirteenth Amendment was ratified more than a century and a half ago, courts have yet to delve into its relevance to gender discrimination. This oversight is unfortunate given the extent to which jurisprudence about another Reconstruction Amendment, the Fourteenth Amendment, has evolved beyond its original racial confines to include gender, disability, sexual orientation, and other forms of group-specific inequalities. A progressive interpretation of the Thirteenth Amendment should likewise expand congressional enforcement authority beyond race.  As was the case with its Fourteenth Amendment counterpart, the Thirteenth Amendment was initially ratified to prevent racial discrimination, but its antisubordination principles are also relevant to policies for abolishing gender discrimination. This underexplored area of law offers tremendous potential for providing redress against a variety private, state, and institutional forms of gender discrimination that are not actionable under current civil rights statutes.

This Essay demonstrates how broad concepts of liberty, which abolitionists, feminists and Congress developed before and after the ratification of the Thirteenth Amendment, seamlessly lend themselves to the enforcement of gender equality norms. Over the last forty years, the Supreme Court has recognized the existence of federal authority to prevent state gender discrimination. The Thirteenth Amendment is a source of legislative authority that can be used to address private acts of discrimination.