Sex-Based Brain Differences and Emotional Harm

45 Pages Posted: 9 Nov 2020

See all articles by Betsy Grey

Betsy Grey

Arizona State University (ASU) - Sandra Day O'Connor College of Law

Date Written: October 26, 2020

Abstract

Technological advances have allowed neuroscientists to identify brain differences between women and men, which may lead to explanations for sex-biased population differences in behavior and brain-based disorders. Although the research is at its early stages, this is an appropriate time to examine some of the potential legal implications of these findings. This Article examines that question in the context of tort law, especially how scientific findings may affect the use of the reasonable person standard in emotional injury claims. Specifically, studies suggest that there may be distinct sex-based mechanisms involved in reactions to extreme stress, raising the question of whether women experience and process stress and trauma differently than men.

This Article argues that these studies may eventually inform the use of the reasonableness standard for freestanding emotional harm claims. As science further develops, courts may either apply a reasonable woman standard in limited contexts or at least allow jurors to consider evidence of sex-based differences in applying a reasonable person standard. Recognizing these differences, courts have already begun to apply the reasonable woman standard to hostile workplace environment claims, and science may support broader use of that standard, especially for negligent and intentional infliction of emotional harm claims.

Keywords: Torts, Emotional Harm, Neuroscience and Law, Evidence, Feminist Jurisprudence

Suggested Citation

Grey, Betsy, Sex-Based Brain Differences and Emotional Harm (October 26, 2020). 70 Duke L.J. Online 29 (2020), Available at SSRN: https://ssrn.com/abstract=3719481

Betsy Grey (Contact Author)

Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )

Box 877906
Tempe, AZ 85287-7906
United States

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