The great irony of the debate about special treatment versus equal treatment for women, as Ginsburg noted, is that the “separate modes thesis” of the new legal feminists looks very much like “the old typology in which the female is classified in terms of passion and its bonds, the male in terms of reason and its distinctions.” And it was this typology of difference that had been used to justify the legal subordination of women until the 1970s. Most laws that drew an explicit distinction between men and women, as Ginsburg noted, did so ostensibly to protect women, or “benignly prefer” them.
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