An Antitrust Approach to Sex Equality

Abstract

This Article argues that antitrust law can and should promote gender equality by prioritizing key consumer markets, namely markets for products and services complementary to women’s labor force participation. These products and services include those that facilitate efficient outsourcing of home production (e.g., childcare, infant formula, and labor-saving household technologies) and those that reduce or eliminate the burdens of biological reproduction (e.g., maternity care, contraception, and abortion care). Drawing on economics, sociology, and feminist literatures, this Article develops a theoretical approach to antitrust law that takes into account the complementarities between these key markets and women’s labor force participation and also links consumer harm to worker harm. Importantly, this Article argues that using antitrust law to promote sex equality requires neither deviation from the conventional consumer welfare standard nor an equity efficiency tradeoff. On the contrary, prioritizing these key consumer markets is conducive to the simultaneous pursuit of efficiency, sex equality, and constitutional equal protection principles.