Emory University School of Law
Evolved Sex Differences and the Law of Sex Discrimination: A Conversation?
Monday, November 1, 2010
Lecture Hall 2, 5:00 PM
Equality under the law and non-discrimination are bedrock principles of the contemporary United States legal landscape, embedded in our constitutional jurisprudence and federal and state antidiscrimination statutes. Yet government and private actors routinely treat individuals and groups differently from one another based on one or another characteristic deemed relevant in the particular context. Certain characteristics – such as race – are held to be especially suspect and are presumptively out-of-bounds as a basis of different treatment by government, employers, and others covered by antidiscrimination laws. However, when the characteristic in question is an individual’s sex, determinations of equality and discrimination are especially problematic. Courts and scholars have long struggled over the existence, relevance, and appropriate treatment of differences between males and females.
In this presentation, I will suggest that the findings of evolutionary science may offer some guidance through the thickets of sex and gender, sameness and difference, invidious and benign discrimination as confronted by legislators, courts, and legal scholars. Though it is crucial to be mindful of the checkered – indeed often sordid and horrific – history of biological explanations of human difference, there is much insight to be gained from a careful and critical examination of the evolutionary tides that have shaped human behavior and given rise to certain sex-based differences. Because the law operates not in an ideal, imagined world but in an actual world peopled by humans with bodies and behaviors shaped by evolutionary forces, it makes sense to attempt to understand these forces and their relevance to law. Sex discrimination law in particular, in its concern with issues of sex, gender, work, harassment, status, stereotype, and difference, presents an ideal context in which to begin to address some of these questions.
Julie Seaman is an associate professor of law at Emory University, where she teaches courses on evidence, constitutional law, and hate speech. Though she has no formal training in evolutionary biology or evolutionary psychology, she became intrigued with these subjects several years ago when she happened upon an article that used evolutionary theory to argue that laws against sex discrimination in the workplace were misguided. Though initially of the view that evolution and law had nothing to say to one another, the more she delved into the evolutionary literature, the more she became convinced that evolution in fact might have much to tell law, particularly in the context of sex, gender, and discrimination.
In addition to her work in the area of law and evolution, Professor Seaman’s research interests include various issues at the intersection of law and neuroscience, as well as the impact more generally of advances in science, including cognitive and social neuroscience, upon settled legal doctrines and theories.
- Form and (Dys)Function in Sexual Harassment Law: Biology, Culture, and the Spandrels of Title VII. Julie A. Seaman. Emory University School of Law. Public Law & Legal Theory Research Paper Series. Research Paper No. 05-25.
- The Peahen’s Tale, or Dressing Our Parts at Work. Julie A. Seaman. Duke Journal of Gender Law & Policy. Volume 14:423. 2007. [HTML version]
- Darlene Jespersen v. Harrah’s Operating Company, Inc. Filed April 14, 2006.
Professor Seaman’s articles may be downloaded here.