LSI Highlight: “Sex-Based Brain Differences and Emotional Harm” by Betsy Grey

Center for Law, Science and Innovation Faculty Fellow Betsy Grey, published “Sex-Based Brain Differences and Emotional Harm” last year studying the sex-based differences in the brain. Technological advances have allowed neuroscientists to identify those differences, potentially leading to explanations for sex-biased population differences in behavior and brain-based disorders. The research is still in the early stages, but creates the perfect opportunity to examine the potential legal implications of these findings. Grey’s article examines the questions in the context of tort law, especially how scientific findings may affect the use of the reasonable person standard in emotional injury claims. These studies suggest that there may be distinct sex-based mechanisms involved in reactions to extreme stress, raising the question of whether women experience and process stress and trauma differently than men.  The article argues that these studies may eventually inform the use of the reasonableness standard for freestanding emotional harm claims. With the development of science, courts may either apply a reasonable woman standard in limited contexts or at least allow jurors to consider evidence of sex-based differences in applying a reasonable person standard. By recognizing these differences, courts have already begun to apply the reasonable woman standard to hostile workplace environment claims and science may support border use of that standard, especially when considering negligent and intentional infliction of emotional harm claims.