Historical Development: The Road to a New Standard of Review
Reed v. Reed (1971) — first case striking down gender discrimination; only applied rational basis review, but still found no reasonable distinction along sex classification that furthered the goals of intestate administration.
Frontiero v. Richardson (1973) — a plurality of the Court applied strict scrutiny to sex classification; "sex, much like race, is an immutable characteristic, and classifications based on sex are inherently suspect."
Craig v. Boren (1976) — the birth of intermediate scrutiny.
State action that classifies on the basis of sex must:
Serve an important governmental objective; and
Be substantially related to the achievement of those objectives.
Application of Intermediate Scrutiny
United States v. Virginia (1996) — the state actor must show an "exceedingly persuasive justification." Evidence of an important governmental objective must be the actual purpose, not a post-hoc realization. Denying equal opportunity based on broad generalizations or sex stereotypes will not withstand intermediate scrutiny.
Alternative remedial measures must be:
A close fit to the constitutional violation; and
Place the victims of discrimination in the position they would have been in absent the discrimination.
Determining if a State Action Is Discriminatory on the Basis of Sex
Review the action to ensure sex is truly the classification being made.
Geduldig v. Aiello (1974) — pregnancy classifications are not necessarily sex classifications.
OLD LAW (statutorily): Congress overruled Geduldig in employment with the Pregnancy Discrimination Act of 1978.
Geduldig is still applied in other contexts to conclude that pregnancy/abortion regulation is not gender discrimination — see Dobbs.