Sex Discrimination (pp. 737–772)
Rule: essentially all government actions that classify citizens based on sex trigger intermediate scrutiny—whether facially or with effect + purpose.
Standard: the law must be substantially related to an important government purpose.
- In between rational basis review and strict scrutiny.
- The state actor must show an "exceedingly persuasive justification" for the classification (VMI; Mississippi University for Women v. Hogan).
- Discrimination against women has a long history in the US. Now, women have been the voting majority since 1980.
Topics Here
- Level of Scrutiny (pp. 737–752) — the road to intermediate scrutiny (Frontiero v. Richardson; Craig v. Boren; United States v. Virginia; Geduldig v. Aiello).
- Gender Stereotypes and Distinctions (pp. 752–772) — application: invalid stereotypes (Orr v. Orr; Mississippi University for Women v. Hogan) vs. valid biological/remedial justifications (Michael M. v. Superior Court of Sonoma County; Rostker v. Goldberg; Nguyen v. INS; Califano v. Webster).
Intermediate Scrutiny Analysis Framework
- State the standard.
- Drop the VMI buzzword: "exceedingly persuasive justification."
- Check for biology (Michael M.; Nguyen).
- Check for remedy (Califano v. Webster).
- Identify the stereotype kill-shot (Orr v. Orr; MUW).
Classifications Based on Sexual Orientation or Transgender Status
- Sexual Orientation: SCOTUS has avoided applying a heightened level of scrutiny.
- Usually applies rational basis (maybe with bite) or explicitly declines to specify—never truly considered on the merits.
- Romer, Lawrence, Windsor, and Obergefell Courts all dodged the scrutiny question.
- Transgender Status: SCOTUS avoided the question in United States v. Skrmetti (2025) (upheld Tenn. ban on gender-affirming care for minors).
- Multiple Justices concluded that transgender persons lack certain characteristics typically found in suspect classes.
- Other Justices advocated for intermediate scrutiny.