Jane Crow: Pauli Murray's Intersections and Antidiscrimination Law

In this article, I discuss Pauli Murray's significant contributions to American jurisprudence, including her conceptualization of the category of Jane Crow and her efforts to have "sex" added to Title VII of the 1964 Civil Rights Act. By considering Jane Crow as a precursor to Kimberlé Crenshaw's theory of intersectionality, I argue that Murray's work provides contemporary scholars and democratic activists with resources for thinking about legal subjects as embodied persons at intersections of sexual, gender, and racial identities. While the focus here is on Murray's legal career, I underscore how Murray characterized legal questions as moral and spiritual problems, thus inviting scholars and activists from other disciplines to develop moral and legal analysis that may to help the law respond to embodied realities.

Pauli Murray's illustrious legal career began in the early 1940s while she was a student at Howard Law School. Though leading civil rights scholars trained her to confront Jim Crow, Murray left Howard with a keen sense of what she called Jane Crow. After her male classmates and professors repeatedly diminished women's concerns, Murray recognized that she was, "a minority within a minority, with all the built-in disadvantages that such status entailed."¹ In a 1947 article, she described Jane Crow as African American women's experiences of being discriminated against as a result of racism and sexism. Murray distinguished Jane Crow from white women's and black men's concerns, "for within this framework of 'male supremacy' as well as 'white supremacy,' the Negro woman finds herself at the bottom of the economic and social scale."² Murray would use Jane Crow in her legal and religious writing to explain how African American women experience an interstructuring of oppressions.

Sex and Antidiscrimination Law: A New Legal Strategy

In her early career, Pauli Murray distinguished herself as an employment and antidiscrimination law expert, who insisted on the indivisibility of human rights.³ She was among a group of feminist lawyers developing legal strategies to move forward women's rights. Amid debates about landmark civil rights legislation, this group seized the chance to expand legal protections for women. The word "sex" was a last minute amendment to Title VII, which prohibits workplace discrimination, of the House's version of the Civil Rights Act and was expected to be removed by the Senate. The initial wording precluded employment discrimination "according to a person's race, color, religion, or national origin"; the proposed amendment added "sex." This group of feminist lawyers tapped Murray to write a memo in support of retaining "sex" that would be sent to lawmakers and White House officials.

Opponents of the amendment of "sex" believed that it would distract from the Civil Rights Act's primary purpose—to end discrimination against African Americans. But Murray saw this as a false dichotomy: she opened the memo with a comparison between the status of (white) women and (male) African Americans. Drawing such a comparison, or using analogical reasoning, was a familiar strategy in legal writing whereby she could take advantage of recent civil rights precedents by "applying accepted principles to new circumstances."⁴ Citing evidence from contemporary social scientists about similarities between sex and race discrimination, Murray emphasized that while courts had worked to remedy race discrimination, they were almost completely oblivious to sex discrimination.

In defense of keeping "sex" in Title VII, Murray argued initially that sexism is as destructive as racism. To convince lawmakers about the importance of the amendment, Murray drew a number of parallels between race discrimination (which senators were ready to legislate against) and sex discrimination (which they largely overlooked). In 1964, Murray was among the first legal theorists to associate sex and race discrimination. In fact, legal scholar Serena Mayeri argues that "no one did more than Murray to make race-sex analogies the legal currency of feminism."⁵

However, Murray's argument did not rest on an equivalency between racism and sexism. Her comparison was rhetorically strategic, leading readers to see the moral significance of sexism. She then insisted that race and sex discrimination should...