Note to readers: This is the first of a multi-part series on the messed-up state of the law on sex discrimination.

The 14^th Amendment and the civil rights laws have long been interpreted to prohibit discrimination on the basis of sex. That has meant that it’s illegal to discriminate in hiring, college admissions, public accommodations, and so on, against a man for just being a man or a woman for just being a woman.

Ah, if only things were still so simple.

One early wrinkle in the law involved “disparate impact.” In some fields, women predominate and in other fields men do. For example, men predominate in playing chess, doing high-level mathematics, and being firefighters. Despite concerted efforts to attract more women to those fields, that continues to be the case.

(Yes, I saw The Queen’s Gambit; it’s a wonderful series – of utter fiction. Of chess Grandmasters, only 2.1% are women, and no woman has ever been a World Chess Champion, or even been good enough to play for the title.)

Theories abound as to why this is so. In firefighting, it’s easy enough to say why. Firefighters need a degree of physical strength that is very unusual in women. They need that strength because once in a while they have to carry something heavy like a 150-pound hose up to a burning house or an injured victim out of the house.

How many women do you know who can carry a 200-pound man over her shoulder? Sure, a few can. That’s why a few can be firefighters.

But the negative impact of this requirement for physical strength falls disparately on women. And so, relatively few women meet the requirement.

In the industry of sex discrimination lawsuits, this job requirement is said to have a disparate impact against women and, therefore, say the plaintiff lawyers, it is presumptively illegal.

That is easy to rebut, and I already have: The requirement is a legitimate one for the job. But what about non-physical requirements in other jobs? What about the requirement that high-level mathematicians be able to do high-level math? What about the requirement that chess Grandmasters be able to compete with other chess Grandmasters?

Chess Grandmasters are easy to address, in one sense. You have a competition. If women lose and men win, it’s clear that the men were the better players. The requirement that a chess Grandmaster win a lot of chess matches does indeed have a disparate impact on women since, relatively speaking, they don’t. But you can’t eliminate that requirement without eliminating the competition.

Math is trickier, because there aren’t many objective standards. People good in one field of math might be less good in another. Moreover, measuring how “good” they are is difficult. Is it on the basis of the number of academic papers they’ve written? Or the quality of those papers? As determined by whom?  

If men are better at firefighting for physical reasons, they might be better at math and chess for mental ones. Math and chess appear to be fields where men have an advantage because their brain is wired a little differently from a woman’s brain. Books have been written on this subject.

That’s not to say that men are “smarter.” There are truly different kinds of intelligence. Female toddlers tend to speak earlier than male ones, for example, and even later in life women tend to be more adept at language.

I personally was good at math but lousy at foreign languages (some would say all languages).

Maybe this is related to the distinction between linear thinking where men are adept versus heuristic thinking where women are adept. But now I’m mostly engaged in bullshit thinking at which both sexes are adept.

In recognizing the difference between male and female brains, here’s another factor to consider. Male and female bodies are different in multiple ways – physically, hormonally, biochemically, structurally. Isn’t it a bit naïve to contend that these differences throughout their bodies do not extend to their brains?

In suggesting that male and female brains are, on average, wired a bit differently, I’m fully prepared to be canceled. (There’s an “unsubscribe” button somewhere here.) After all, better brains than mine have been canceled for this – such as the brain of Larry Summers when he was canceled from his job as president of Harvard for merely suggesting the possibility that math might be a field where physiological differences between men and women could account for the disparity in achievement.

The disparate impact advocates and their lawsuit-loving lawyers point to another, different factor. They say the reason that women are not as good as men in math and chess is that they’re victims of cultural discrimination. They’re steered away from “masculine” things like math and chess and toward “feminine” things like sewing and baby-tending.  

These activists thus implicitly admit that women chess players and mathematicians are not as good, but say it’s not their fault.

In fact, they say they’re victims. To remedy their victimhood, we need to favor them in an affirmative action sort of way. Promote the less capable, victimized women, they urge, so they can serve as examples to young girls (as if girls cannot see a capable man as a good example).

In other words, the resulting reduction in average ability in chess-playing and mathematics is a small price to pay for these incapable women serving as good examples to girls.

When you put it that way, it sounds like a bad policy, and it is.

We have the precedent of at least two generations of affirmative action in race matters, and we seem further than ever from minority achievement (and well down the road to race wars). Affirmative action is unlikely to be any more successful in sex matters.