Unsexing the Fourth Amendment

Abstract

Although rarely remarked upon in Fourth Amendment jurisprudence, traditional notions of sex and gender matter in a host of areas, from stop and frisks on the streets, to strip searches in schools and prisons, to the pat downs and body scans that have become the new normal at airports. The first goal of this Article is to uncover and draw attention to this aspect of the Fourth Amendment. The second concededly more ambitious goal is to interrogate this reliance on tradition. A Fourth Amendment preference for same-gender searches may comport with notions of modesty and societal norms. But at what cost to the Fourth Amendment? And at what cost to true equality?

Keywords: Fourth Amendment, searches and seizures, gender, sex, employment discrimination, strip searches, pat down, stop and frisk, airport searches, prison searches, school searches, race