Picture this scenario and let me know what you think. A young man and a young woman meet at a party, go home together, have sex, and the woman gets pregnant. She doesn’t feel ready emotionally or financially to be a parent, but doesn’t want an abortion, so she decides that the best answer is to give the baby up for adoption. The young man, on the other hand, does not want to give up his rights as a father and wants to raise the baby as his child. The young woman agrees, and in due course, delivers the baby. The new father happily takes home his little baby girl. Then he asks the young woman to pay child support.
Is this fair or unfair? Should the young woman have to pay child support? Should this even be a question? Because if we reverse the sexes, and have the young mother keep the baby, the father has no option; he pays. Period. Going further, if she doesn’t agree, she may be able to give the child up for adoption over his objections. Can you even imagine the opposite occurring, a father giving up his child for adoption over the objections of the child’s mother?
My point here is simple; there is a difference in the law concerning the rights of the parents that is based solely on the gender of the parent.
So here is my question; are we okay with applying the law differently to people based on a biological difference like their gender? Should the law treat men differently than it does women? Are there other biological differences that we use for different laws?
Think of how we treat young people. They can’t drive until they are 16, vote until they are 18, or drink until they are 21. And you can’t really argue that we’re legislating based on their capabilities or level of maturity because we all know examples of kids who are either mature beyond their age, or conversely, never seem to grow up. But instead of developing criteria that measure actual capabilities, we default to a biological measure almost entirely unrelated to capabilities. For example, it is apparent that kids have the capacity to knowingly commit serious crimes. if they commit a serious crime before they turn 18, except in a few cases, they do not have to face the consequences of those crimes once they reach 18. Or think about this: a 15 year old boy who has sex with an older woman is a victim of statutory rape; if he has sex with a 13 year old girl, he’s a rapist. Well, until he’s 18, at which point, he’s a free man.
For a long time we had separate laws based on skin color; thankfully we are past that, but I have to wonder whether we will ever get past other forms of legal discrimination.
Our Constitution recognizes that we are to receive equal treatment under the law. It doesn’t say anything about excluding certain biological factors like gender. And in general, we honor that requirement. In fact it has been used to support women’s rights, minority rights, immigrant rights, and now LGBT rights. But we make an exception when it comes to reproductive rights, as well as family rights in general, don’t we? A man’s right to choose ends at the decision to have sex. The woman’s right to choose extends far beyond that point even though her choices place obligations on the man. Is this fair?
But is it necessary? That’s the key question and one that has no easy answer. Tell me what you think. Should we recognize biological realities in our application of the law? How can we do so in a way to maximize equal treatment under the law? How can we avoid victimizing one side in favor of the other?