Gender Stereotypes and Distinctions (pp. 752–772)
Rule: gender classifications that benefit one class but are based on or promote stereotypes generally do not withstand review under intermediate scrutiny.
Cases Striking Down Stereotype-Based Classifications
- Orr v. Orr (1979) — state actions that benefit women but have the purpose of reinforcing gender stereotypes will not withstand intermediate scrutiny.
- Invalid government objective: reinforcing traditional family roles (wives fully dependent on their husbands).
- Valid government objectives related to marriage:
- Providing financial assistance to needy spouses; and
- Compensating women for past economic discrimination during marriage.
- Mississippi University for Women v. Hogan (1982) — review under intermediate scrutiny requires an "exceedingly persuasive justification."
- The members of the gender benefited by the classification must actually suffer a disadvantage in the specific area the statute regulates.
- Start with what's being regulated, then determine if the benefitted class was harmed in the past.
- Weinberger v. Wiesenfeld (1975) — SS provisions allowing only widowed mothers to receive survivor benefits unconstitutional; based on stereotypes that only male earnings are vital.
Takeaway: any law that reinforces gender stereotypes will likely be struck down under intermediate scrutiny.
Justification 1 — Classes Not "Similarly Situated"
State action that classifies based on sex may be allowed if the sexes are not similarly situated with regard to the area being regulated. Generally, this concerns biological differences (pregnancy and birth).
- Michael M. v. Superior Court of Sonoma County (1981) — sex-specific statutory rape law upheld; women face natural deterrent (pregnancy) so the additional deterrent on men was permissible.
- Rostker v. Goldberg (1981) — male-only draft registration upheld; women were excluded from combat at the time, so the classes were not similarly situated regarding combat-readiness.
- Modern implications: women now serve in combat, so the classes are technically now similarly situated. SCOTUS declined to reconsider in 2021.
- Nguyen v. INS (2001) — citizenship for children born abroad; men and women not similarly situated regarding the birth of children. Gender classifications may withstand intermediate scrutiny if designed pursuant to biological differences.
- Opposite outcome — Sessions v. Morales-Santana (2017): physical-presence durational requirements (1 year for mothers, 5 years for fathers) lacked any inherent biological-difference justification; classification unconstitutional.
Justification 2 — Remedial Action for Past Discrimination
A gender classification can withstand intermediate scrutiny if it directly compensates the benefited class for past economic or social discrimination.
- Need a direct and concrete link between the gender class benefiting and the historical discrimination claimed to be remedied.
- Califano v. Webster (1977) — SS benefit formula granting women higher monthly payments upheld as redress for women's longstanding economic discrimination.
- Reconciled with MUW v. Hogan: in MUW, the gender class benefitting from the regulated area (women in nursing) had never experienced discrimination in nursing — so no remedial measure was needed. In Webster, the policy applies to all women, who have historically suffered economic discrimination.
- Schlesinger v. Ballard (1975) — Navy discharged men after 9 years without promotion vs. women after 13 years; allowed because designed to remedy fewer opportunities for women to advance.