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Abstract

Sex inequality still exists. However, its manifestations have evolved since the early sex inequality cases were heard in courts and legislatures first began structuring statutory regimes to combat it. In particular, so-called "facial" discrimination against men and women on the basis of sex has no doubt decreased since the advent of this legal assault on sex inequality. Yet the gendered assumptions that structure our institutions and interactions have proven resilient. With sex discrimination now operating more covertly, the problem of sex inequality looks considerably different than it once did. Courts, however, have failed to successfully respond to the changing contours of sex inequality, allowing the problem to manifest itself in ways that are becoming increasingly difficult to identify and root out. This Article proposes that courts formulate an alternative legal framework within which to understand the problem of sex inequality such that they are better equipped to address its evolving nature-a framework which unambiguously names bad ideology, not simply bad actors and differential treatment, as sex equality's nemesis. Through such a renaming and reframing, U.S. law might become a more effective arena for negotiating the gendered assumptions that underlie the problem of sex inequality, should space be made within its discourse for such a conversation to take place.