The Courts historically interpreted the equal protection clause in the 14th Amendment to the Constitution to discriminate against women based upon assumptions of the framers intent. The framers did address the issue of gender rights in a number of places however explicitly left sexual discrimination out of the realm of constitutional provisions. The framers of the Constitution were primarily concerned with the right of men, and anti discrimination provisions were framed with the racial and labor issues of the day in mind.
Furthermore the framers as well as the drafters of the 14th Amendment had traditional views on gender relations and actively sought to confine women to their traditional domestic role. The 14th Amendment was initially used to deny women suffrage during the 1870s, denying them the ‘privileges and immunities’ due to citizens in Section One of the 14th Amendment. The denial of the right to jury service and the 14th Amendment
The use of the equal protection clause in the 14th Amendment of the Constitution against women can be demonstrated by the historical exclusion of women from jury service in the first half of the 20th century. Women were completely excluded from jury service in the United States until 1870 when the first women jury members were allowed in the state of Wyoming. Women were perceived to be weak and fickle and not fit for the rigours of jury service.
However the admission of women into juries in Wyoming was short lived, by the end of the 19th century the situation had reverted to exclusion. In Massachusetts v Welosky 1931 the Court denied due process of law under the 14th Amendment to a woman by the exclusion from the jury of all women (Moncure, 1958, p. 15). In Muller v Oregan 1908 and Riley v Massachusetts 1908 it was held that women were not ‘persons’ and as such could not avail of equal protection of the law in employment and labor relations (Moncure, 1958, p. 15).
