How Courts Review Sex-Based Discrimination Claims

The standard of constitutional review applied to sex-based discrimination is a complex and evolving area of law. While the Nineteenth Amendment in the United States recognised women's presence in the public sphere, it did not grant them equal rights. The courts have since grappled with the question of what standard of scrutiny to apply to sex-based discrimination claims. The Supreme Court has applied intermediate scrutiny in some cases, requiring the state to prove a substantial relationship between the goals of a statute and its discriminatory means. However, some argue that a strict scrutiny standard is necessary to effectively regulate sex-based discrimination. The lack of an Equal Rights Amendment leaves the Supreme Court with discretion in choosing the standard of review, highlighting the ongoing legal debate surrounding this issue.

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Intermediate scrutiny

In the context of sex-based classifications, intermediate scrutiny applies to constitutional challenges of equal protection and discrimination. An example of this is seen in Craig v. Boren, which was the first case in the United States Supreme Court to apply an intermediate standard of judicial review to statutory or administrative sex-based classifications. In Mississippi University for Women v. Hogan, the Supreme Court ruled that the proponent of discrimination must provide an "exceedingly persuasive justification" for sex-based classification to be considered valid. The court applied intermediate scrutiny in a way that resembled strict scrutiny, and in recent decisions, the Court has preferred the term "exacting scrutiny" for this level of Equal Protection analysis.

The court has also applied intermediate scrutiny in cases such as J.E.B. v. Alabama, which involved specific strikes against male jurors during jury composition, and United States v. Virginia, concerning male-only admission to the Virginia Military Institute. In the latter case, the burden of proving an important governmental interest behind the proposed gender classification was on the state, and this burden has grown even higher since the ruling. The state must provide an exceedingly persuasive justification, which must be the true purpose and cannot be based on overbroad generalizations about the different characteristics of men and women.

Overall, intermediate scrutiny is an important tool used by courts to address constitutional challenges related to sex-based discrimination and other forms of discrimination, ensuring that statutes further important government interests and do so by means substantially related to those interests.

Strict scrutiny

Historically, sex-based discrimination was not considered obstructive enough to warrant strict scrutiny. Instead, it was evaluated using a three-tiered approach that included strict scrutiny, intermediate scrutiny, and the rational basis test. Intermediate scrutiny, which was adopted by the Court in the 1970s, required the state to prove a "substantial relationship" between the goals of a statute and its means of discrimination based on sex.

However, in recent decades, the three-tiered approach has been abandoned by the Supreme Court, leaving sex-based discrimination to be evaluated under the two-tiered framework of strict scrutiny and the rational basis test. This change has left individuals who experience sex-based discrimination in a more vulnerable position, as the rational basis test holds the state to a lower standard, making it more likely for discriminatory statutes to be upheld.

Despite this shift, some courts have applied strict scrutiny to sex-based discrimination. For example, in 2008, the California Supreme Court adopted the strict scrutiny standard for state laws that discriminate on the basis of sex. Additionally, in Mississippi University for Women v. Hogan in 1982, the United States Supreme Court applied intermediate scrutiny in a way that resembled strict scrutiny, requiring an "exceedingly persuasive justification" for sex-based classification.

The application of strict scrutiny to sex-based discrimination remains a complex and evolving area of law, with ongoing debates and varying approaches across different courts and jurisdictions.

Rational basis test

The rational basis test is the least rigorous standard of judicial review in the US. When this test is invoked, the state must demonstrate that there is a "rational link" between the statute and government interest. The bar for this test is low, and it is applied to factors not categorized as "suspect classifications", such as age and economic status.

Historically, sex-based discrimination has not been evaluated under the rational basis test. When the Court first acknowledged sex-based discrimination in the 1970s, it placed sex discrimination in the middle of the spectrum: it was not considered obstructive enough to apply the strict scrutiny test, but merited closer consideration than the rational basis test. This led to the Court's adoption of the intermediate scrutiny test.

The intermediate scrutiny test requires the state to prove that there was a "substantial relationship" between the goals of a statute and its "means", or the manner in which the statute discriminated on the basis of sex. The test is applied to sex-based classifications that challenge equal protection and discrimination.

However, in recent decades, the Supreme Court has returned to a two-tiered framework, with race and ethnicity evaluated under strict scrutiny, and sex, age, socio-economic status, and most other factors evaluated under the rational basis test. This has resulted in a pattern of lowering the bar for sex discrimination, leaving individuals who experience sex-based discrimination in a vulnerable position.

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Equal Protection Clause

The Equal Protection Clause of the Fourteenth Amendment states that no state can "deny to any person within its jurisdiction the equal protection of the laws". This clause has been applied to many aspects of public life, including education, military benefits, and marriage.

The Supreme Court has expanded the interpretation of the Equal Protection Clause to include protection from gender discrimination. In Reed v. Reed (1971), the Court first recognized the unconstitutionality of gender-based legal preferences, and in Craig v. Boren (1976), the Court introduced the "intermediate scrutiny" standard for evaluating gender discrimination. This standard requires that laws discriminating based on gender must serve important governmental objectives.

In Frontiero v. Richardson (1973), the Supreme Court tackled gender discrimination in military benefits. Sharron Frontiero, a U.S. Air Force officer, sued the Secretary of Defense over a policy that automatically granted benefits to male service members' spouses, while female service members had to prove their husbands' dependency. The Supreme Court ruled in Frontiero's favor, declaring the policy discriminatory and reinforcing the principle of equality.

The Equal Protection Clause has also been applied to cases involving racial discrimination. In Brown v. Board of Education, the Supreme Court held that the Constitution prohibits states from maintaining racially segregated public schools. In Skinner v. Oklahoma ex rel. Williamson (1942), the Court emphasized the need for strict scrutiny of sterilization laws to prevent invidious discrimination against groups or individuals.

The Equal Protection Clause requires substantially equal legislative representation for all citizens in a state, regardless of where they reside. It also prohibits state support of segregated schools and ensures that similarly situated individuals are treated alike.

Supreme Court rulings

The US Supreme Court has ruled on several cases involving sex-based discrimination. In United States v. Virginia (1996), the Court held that the state-supported Virginia Military Institute could not refuse to admit women. The Court's ruling was based on the Equal Protection Clause of the Fourteenth Amendment, which requires that any gender classification must serve an "important governmental interest".

In a landmark ruling in 2020, the Supreme Court held that Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on sexual orientation and gender identity. The Court found that an employer who fires someone simply for being homosexual or transgender violates Title VII. The Court provided an illustration of how it is impossible to discriminate against an individual for their sexual orientation without also discriminating against that person based on sex.

In another case, the Supreme Court found that Ohio public schools' mandatory maternity leave rules for pregnant teachers violated due process guarantees under the Constitution. The Court held that a claim of "hostile environment" sexual harassment is a form of sex discrimination and a violation of Title VII of the Civil Rights Act of 1964.

The Supreme Court has also ruled on cases involving gender discrimination in the context of education. In a case against a county school board, the Court created guidelines for lawsuits under Title IX of the Education Amendments of 1972. The Court held that a lawsuit may be filed against a school board based on student-on-student sexual harassment if the board is deliberately indifferent to the harassment, and the harassment is severe enough to deprive the victims of access to educational opportunities or benefits.

In terms of the standard of constitutional review applied to sex-based discrimination, the Supreme Court has used intermediate scrutiny in some cases. In Craig v. Boren (1976), the Court determined that statutory or administrative sex-based classifications were subject to an intermediate standard of judicial review. In Mississippi University for Women v. Hogan (1982), the Court ruled that the proponent of the discrimination must establish an "exceedingly persuasive justification" for sex-based classification to be valid. This application of intermediate scrutiny is closer to strict scrutiny, and the Court has recently preferred the term "exacting scrutiny" when referring to this intermediate level of Equal Protection analysis.

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