The weaker sex: is being male a legally cognizable defect, impairment, or disability?

Compared with women, men die from cancer and coronary artery disease in disproportionately higher numbers and are more susceptible to a host of emotional and developmental disorders. The authors of this article consider what scientific proof or evidence would be required to legally recognize "being male" as a disability, based on the overwhelming number of physical deficiencies to which males are genetically predisposed. The article summarizes major scientific findings on male health problems and explores various laws and policies that might be implicated by treatment of males as a special category recognized by the law. How the law creates categories of individuals and the reasons why these categories are created for legal classification are reviewed. In addition, the potential for a "maleness" defense in the context of criminal law and procedure is assessed. Lastly, the authors examine the policy implications of treating men as a disabled class, and consider how judges, juries, and legislators would view a scientifically based approach to the creation of a class. Given the many false starts in the past, in which the law had embraced what later was shown to be bad science, substantial historical baggage will have to be overcome to convince judges, juries, and legislators that science has now got it in the sense of having established a valid, causal, genetic or biological determinant for behavior. The consideration of a "male deficiency" theory under the law would have to rely on a more inclusive view of legal "disability" and a willingness to allow technologic advances in genetics to inform our understanding of criminal behavior.