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van den Brink, Loenen, and Tigchelaar on Sex Segregation

By Lawrence Solum

Marjolein van den Brink , Titia Loenen and Jet Tigchelaar have posted Sex Segregation and Equality in a Multicultural Society: Inferiority as a Standard for Legal Acceptability (Utrecht Law Review, Vol. 6, No. 3, pp. 115-144, June 2010) on SSRN. Here is the abstract:

This contribution explores the legal acceptability of old and new forms of sex segregation, using a multilayered ?inferiority test? that can be regarded as a specification of (inter)national equality and non-discrimination standards. The test is applied to a number of topical cases of sex segregation: 1) A traditional case of rather uncontested sex segregation in sports, specifically in amateur football; 2) A more controversial case that seems to be on the rise once again: sex-segregated education; 3) The highly controversial case of sex-segregated integration courses in the Netherlands. The outcome shows that each sex-segregated practice is problematic in the light of one or more criteria of this inferiority test, but not necessarily the same criteria. Specific attention is paid to the merits of the test in a multicultural context. The inferiority test is a useful tool in dealing with multicultural complexity, although not in every respect. It allows the impact of sex segregation on minority women to be taken into account, as well as cultural and religious reasons which women may have in demanding sex-segregation facilities, unless this will result in perpetuating their or other women?s subordination.

Our findings suggest that the inferiority test is quite useful as an analytical tool to assess contested practices of sex segregation. However, the multilayered character of the test needs some fine-tuning when the various elements of the test lead to different conclusions.

Full post as published by Legal Theory Blog on June 19, 2010 (boomark / email).