In recent cases, the United States Supreme Court has increasingly limited the circumstances under which it would approve, as benign sex discrimination, laws that purport to favor one sex over the other as a means of redressing the present effects of past sex discrimination. Yet the Court has not entirely rejected the benign discrimination doctrine which, in its modem form, was first announced in Kahn v. Shewn. Professor Kanowitz urges the total repudiation of the doctrine for two reasons: 1) it ignores the history of pervasive de jure sex discrimination against men; and 2) laws that purport to grant women preferential treatment turn out, upon close examination, to harm women as well. On the basis of Calfiano v. Wesicolt and other cases, Professor Kanowitz suggests how the courts can preserve the principle of sex equality and the truly beneficial aspects of benignly discriminatory laws and, at the same time, invalidate their detrimental aspects.
Benign Sex Discrimination: Its Troubles and Their Cure,
31 Hastings L.J. 1379
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