Reproducing Inequality Under Title IX

55 Pages Posted: 15 Sep 2020 Last revised: 14 Oct 2020

See all articles by Deborah L. Brake

Deborah L. Brake

University of Pittsburgh - School of Law

Joanna L. Grossman

Southern Methodist University - Dedman School of Law

Date Written: 2020

Abstract

This article elaborates on and critiques the law’s separation of pregnancy, with rights grounded in sex equality under Title IX, from reproductive control, which the law treats as a matter of privacy, a species of liberty under the due process clause. While pregnancy is the subject of Title IX protection, reproductive control is parceled off into a separate legal framework grounded in privacy, rather than recognized as a matter that directly implicates educational equality. The law’s division between educational equality and liberty in two non-intersecting sets of legal rights has done no favors to the reproductive rights movement either. By giving a formal “right” to stay in school and the right to equal treatment with temporarily disabled students, Title IX may be strategically deployed by proponents of restricting abortion rights to minimize the educational consequences of involuntary motherhood. The hard realities of how pregnancy and parenting impact schooling are obscured.

The article explores the legal divide between pregnancy discrimination and reproductive rights in relation to education in three parts. Part I discusses the rights included in, and omitted from, Title IX relating to pregnancy and reproduction. Part II surveys the liberty-based reproductive rights framework for pregnancy prevention and termination and discusses its limits in protecting young women from the educational effects of unwanted pregnancy and motherhood. Part III concludes by discussing the implications of separating out pregnancy discrimination from the broader set of reproductive rights and elaborating on the harms that flow from the law’s failure to recognize the educational equality dimensions of the denial of reproductive rights.

Keywords: Title IX, pregnancy discrimination, educational equality, reproductive rights, abortion rights, law and legislation, women’s rights

Suggested Citation

Brake, Deborah L. and Grossman, Joanna L., Reproducing Inequality Under Title IX (2020). 43 Harv. J. L. & Gender 171 (2020) , SMU Dedman School of Law Legal Studies Research Paper No. 482, U. of Pittsburgh Legal Studies Research Paper No. 2020-27, Available at SSRN: https://ssrn.com/abstract=3690425

Deborah L. Brake

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

Joanna L. Grossman (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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