Mary Anne Case


My goal in this essay is to introduce legal academics to a body of theory on sex equality generated throughout Western Europe from at least the fourteenth century until the French Revolution. The authors in this tradition were mostly what we today might call "sameness" feminists; that is to say, they took the position that all differences between the sexes apart from those directly connected to reproductive physiology were the product of education and custom, not of nature. If women were given the education and opportunities available to men, these writers contended, they would achieve as men have.

Scholars in the humanities, to whom this tradition is generally known under the rubric "querelle des femmes," have become increasingly familiar with its major works and authors. Those who search for the first feminist, for example, are increasingly likely to name not eighteenth-century authors like Mary Wollstonecraft, but Christine de Pizan, whose City of Ladies dates from 1405, or Marie de Gournay, who published "On the Equality of Men and Women" in 1622. But despite what I believe to be interesting parallels to continuing debates in the legal academy, the querelle tradition seems to have gone virtually unnoticed by legal theorists. After outlining the parameters of the querelle, I will briefly attempt to draw a few of these parallels to the circumstances surrounding the prohibition of sex discrimination under Title VII and to the use of "voice" and narrative in critical race and feminist theory. The former is usually considered to be an anomaly, the latter a new thing under the sun; my hope is to situate them instead in the context of a centuries-old tradition.