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Gender: Gender Discrimination


Goesaert v. Cleary 335 U.S. 464 (1948)

In Goesaert, the Supreme Court considered the constitutionality of a Michigan law that prohibited women from obtaining bartending licenses unless they were the wife or daughter of the male owner of a licensed liquor establishment. The Court regarded the inquiry as a simple one, asserting, “To ask whether or not the Equal Protection of the Laws Clause of the Fourteenth Amendment barred Michigan from making the classification the State has made between wives and daughters of owners of liquor places and wives and daughters of non-owners, is one of those rare instances where to state the question is in effect to answer it” (335 U.S. 464, 465). According to the Court, Michigan could constitutionally preclude women from working as bartenders because, social progress notwithstanding, states could treat men and women differently without confronting heightened judicial scrutiny. As Justice Frankfurter plainly asserted, “The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards” (335 U.S. 464, 466). The soundness of this proposition would be effectively challenged less than thirty years later by Craig v. Boren (429 U.S. 190).

Craig v. Boren 429 U.S. 190 (1976)

Interestingly, it was a group of male plaintiffs that brought the case that would produce the intermediate standard of review to which all gender-based classifications are currently subjected. These young men challenged Oklahoma statutes prohibiting the sale of 3.2% beer to males under the age of 21 and females under the age of 18 on the grounds that they denied Oklahoma men the equal protection of the law.

At the outset of its equal protection analysis, the Court noted that prior cases indirectly established an intermediate standard of review for gender-based classifications. It then formally codified that standard: “To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives” (429 U.S. 190, 197).

Thus, the question before the Court was essentially whether the Oklahoma statute was substantially related to a proffered important governmental objective—in this case, traffic safety. Oklahoma attempted to establish that the answer was yes via social science evidence. For example, the state cited an analysis of arrest statistics for 1973 that “demonstrated that 18-20-year-old male arrests for ‘driving under the influence’ and ‘drunkenness’ substantially exceeded female arrests for that same age period.Similarly, youths aged 17-21 were found to be overrepresented among those killedor injured in traffic accidents, withmales again numerically exceeding females in this regard.Third, a random roadside survey in Oklahoma City revealed that young males were more inclined to drive and drink beer than were their female counterparts.Fourth, Federal Bureau of Investigation nationwide statistics exhibited a notable increase in arrests for ‘driving under the influence.’ Finally, statistical evidence gathered in other jurisdictions, particularly Minnesota and Michigan, was offered to corroborate Oklahoma's experience by indicating the pervasiveness of youthful participation in motor vehicle accidents following the imbibing of alcohol” (429 U.S. 190, 201).

The Court was not persuaded. Noting that the “most focused and relevant of the statistical surveys” was the comparison between arrests for alcohol-related offenses for 18-20-year old males and 18-20-year old females, the Court proceeded to dismiss the relevance of that survey. “Viewed in terms of the correlation between sex and the actual activity that Oklahoma seeks to regulate driving while under the influence of alcohol the statistics broadly establish that .18% of females and 2% of males in that age group were arrested for that offense. While such a disparity is not trivial in a statistical sense, it hardly can form the basis for employment of a gender line as a classifying device. Certainly if maleness is to serve as a proxy for drinking and driving, a correlation of 2% must be considered an unduly tenuous ‘fit’” (429 U.S. 190, 201).

After noting the general methodological deficiencies of the other proffered statistics, the Court concluded, “Suffice to say that the [statistical evidence] . . . does not satisfy us that sex represents a legitimate, accurate proxy for the regulation of drinking and driving” (429 U.S. 190, 204).

Mississippi University for Women v. Hogan 458 U.S. 718 (1982)

In Hogan, the Court considered whether a state statute that excludes males from enrolling in a state-supported professional nursing school violates the Equal Protection Clause of the Fourteenth Amendment. Although the district court upheld the statute, the Court of Appeals reversed on the grounds that the former incorrectly applied a mere rationality review instead of the intermediate standard required by Craig v. Boren.

The Supreme Court granted certiorari and noted at the outset that the Court of Appeals was correct to apply a heightened standard of review. To withstand that review, the statute’s proponent had the burden of “showing at least that the classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives’”(458 U.S. 718, 724).

As in Craig, the complainant in this case was male. The Court addressed the irrelevance of the plaintiff’s gender to the equal protection inquiry and emphasized, “Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or ‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate” (458 U.S. 718, 725). In other words, evidence that the exclusion of males from a particular benefit intends to protect, compensate, or assist women is insufficient to overcome the constitutional hurdle facing a gender-based classification.

Here, the State claimed precisely such a compensatory purpose. The policy, it claimed, served to compensate women for past discrimination. While the Court recognized that such a purpose might be constitutionally acceptable in certain factual situations, it was not persuaded that this was one of those situations.

The Court cited statistical evidence to demonstrate that the State had not established a legitimate compensatory purpose: “Mississippi has made no showing that women lacked opportunities to obtain training in the field of nursing or to attain positions of leadership in that field when the MUW School of Nursing opened its door or that women currently are deprived of such opportunities. In fact, in 1970, the year before the School of Nursing's first class enrolled, women earned 94 percent of the nursing baccalaureate degrees conferred in Mississippi and98.6 percent of the degrees earned nationwide. U.S. Dept. of Health, Education, and Welfare, Earned Degrees Conferred: 1969-1970, Institutional Data 388 (1972). That year was not an aberration; one decade earlier, women had earned all the nursing degrees conferred in Mississippi and 98.9 percent of the degrees conferred nationwide. U.S. Dept. of Health, Education, and Welfare, Earned Degrees Conferred, 1959-1960: Bachelor's and Higher Degrees 135 (1960). As one would expect, the labor force reflects the same predominance of women in nursing. When MUW's School of Nursing began operation, nearly 98 percent of all employed registered nurses were female. United States Bureau of Census, 1981 Statistical Abstract of the United States 402 (1981)” (458 U.S. 718, 729).

The Court suggested that excluding males from a professional nursing school was not only unconstitutional from the males’ perspective, but also potentially invidious from the females’ perspective, as it “tends to perpetuate the stereotyped view of nursing as an exclusively woman’s job” (458 U.S. 718, 729).

Given the State’s failure to articulate a justification that satisfied the intermediate standard of review applicable to all gender-based classifications, the Supreme Court affirmed the Court of Appeals and struck down the statute. 

U.S. v. Virginia 518 U.S. 515 (1996)

More than a decade later, the Supreme Court again confronted the constitutionality of gender-segregated state educational institutions. This time, however, the excluded parties were female and the institution was Virginia’s famed military college, Virginia Military Institute (“VMI”). The United States brought suit challenging the exclusion of women from VMI’s unique educational experience on the grounds that it violated the equal protection clause.

The following excerpt summarizes the case’s procedural history: “The District Court ruled in favor of VMI . . . and rejected the equal protection challenge pressed by the United States. That court correctly recognized that Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982), wasthe closest guide. 766 F.Supp., at 1410. There, this Court underscored that a party seeking to uphold government action based on sex must establish an “exceedingly persuasive justification” for the classification. Mississippi Univ. for Women, 458 U.S., at 724, 102 S.Ct., at 3336 (internal quotation marks omitted). To succeed, the defender of the challenged action must show “at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Ibid. (internal quotation marks omitted). The District Court reasoned that education in “a single-gender environment, be it male or female,” yields substantial benefits. 766 F.Supp., at 1415.VMI's school for men brought diversity to an otherwise coeducational Virginia system, and that diversity was “enhanced by VMI's unique method of instruction.” Ibid. If single-gender education for males ranks as an important governmental objective, it becomes obvious, the District Court concluded, that the only means of achieving the objective “is to exclude women from the all-male institution-VMI.” Ibid. “Women are [indeed] denied a unique educational opportunity that is available only at VMI,” the District Court acknowledged. Id., at 1432. But “[VMI's] single-sex status would be lost, and some aspects of the [school's] distinctive method would be altered,” if women were admitted, id., at 1413: “Allowance for personal privacy would have to be made,” id., at 1412; “[p]hysical education requirements would have to be altered, at least for the women,” id., at 1413; the adversative environment could not survive unmodified, id., at 1412-1413. Thus, “sufficient constitutional justification” had been shown, the District Court held, “for continuing [VMI's] single-sex policy.” Id., at 1413.

The Court of Appeals for the Fourth Circuit disagreed and vacated the District Court's judgment. The appellate court held: “The Commonwealth of Virginia has not ... advanced any state policy by which it can justify its determination,under an announced policy of diversity, to afford VMI's unique type of program to men and not to women.” 976 F.2d 890, 892 (1992).The appeals court greeted with skepticism Virginia's assertion that it offers single-sex education at VMI as a facet of the Commonwealth's overarching and undisputed policy to advance “autonomy and diversity.” The court underscored Virginia's nondiscrimination commitment: “ ‘[I]t is extremely important that [colleges and universities] deal with faculty, staff, and students without regard to sex, race, or ethnic origin.’ ” Id., at 899 (quoting 1990 Report of the Virginia Commission on the University of the 21st Century). “That statement,” the Court of Appeals said, “is the only explicit one that we have found in the record in which the Commonwealth has expressed itself with respect to gender distinctions.” 976 F.2d, at 899. Furthermore, the appeals court observed, in urging “diversity” to justify an all-male VMI, the Commonwealth had supplied “no explanation for the movement away from [single-sex education] in Virginia by public colleges and universities.” Ibid. In short, the court concluded, “[a] policy of diversity which aims to provide an array of educational opportunities, including single-gender institutions, must do more than favor one gender.” Ibid. The parties agreed that “ some women can meet the physical standards now imposed on men,” id., at 896, and the court was satisfied that “neither the goal of producing citizen soldiers nor VMI's implementing methodology is inherently unsuitable to women,” id., at 899. The Court of Appeals, however, accepted the District Court's finding that “at least these three aspects of VMI's program-physical training, the absence of privacy, and the adversative approach-would be materially affected by coeducation.” Id., at 896-897. Remanding the case, the appeals court assigned to Virginia, in the first instance, responsibility for selecting a remedial course. The court suggested these options for the Commonwealth: Admit women to VMI; establish parallel institutionsor programs; or abandon state support, leaving VMI free to pursue its policies as a private institution. Id., at 900. In May 1993, this Court denied certiorari” (518 U.S. 515, 523-526).

In response to the Court of Appeals’ ruling, Virginia proposed an analogous program for women: Virginia Women’s Institute for Leadership (“VWIL”). “The 4-year, state-sponsored undergraduate program would be located at Mary Baldwin College, a private liberal arts school for women, and would be open, initially, to about 25 to 30 students. Although VWIL would share VMI's mission-to produce “citizen-soldiers”-the VWIL program would differ, as does Mary Baldwin College, from VMI in academic offerings, methods of education, and financial resources” (518 U.S. 515, 526).

Virginia returned to the district court seeking approval of its remedial plan. Although the court acknowledged that material differences between VMI and VWIL existed, it concluded that the latter produced an outcome similar enough to VMI to withstand constitutional scrutiny. A divided Court of Appeals panel affirmed.

The Supreme Court, however, disagreed. The Court noted that there was no evidence to corroborate the State’s claim that its policy of excluding women from VMI was in furtherance of its interest in diversity. In addition, the Court rejected the notion that expert testimony regarding “average capacities or preferences of men and women” was pertinent to its constitutional inquiry (518 U.S. 515, 541). Particularly in the context of gender discrimination cases, the Court continually emphasizes its reluctance to consider generalizations.

Virginia, however, sought to justify the methodological differences between VMI and VWIL on the basis of such generalizations. This was constitutionally unacceptable because it continued to deny the opportunities inherent in enrollment at VMI to those women who would choose enrollment and would qualify for the program. “Women seeking and fit for a VMI-quality education cannot be offered anything less, under the Commonwealth's obligation to afford them genuinely equal protection” (518 U.S. 515, 557). Guided by this constitutional postulate, the Supreme Court reversed the Court of Appeals and held that VWIL did not remedy Virginia’s constitutional violation.

Davis v. Monroe County Board of Education 526 U.S. 629

In Davis, the Supreme Court considered whether a private damages action may lie against a school board in cases of student-on-student sexual harassment. The case is noteworthy not only because it illustrates a statutory remedy for victims of gender discrimination in the public schools but also because it has stirred commentary regarding the potential expansion of “gender discrimination” beyond the confines of its traditional definition.

The district court dismissed petitioner’s Title IX claim on the grounds that student-on-student harassment provides no ground for a cause of action under the statute. The Court of Appeals, sitting en banc, affirmed.   

Title IX provides: “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The statute has been widely lauded as successful in its effort to reduce gender inequity in the public education system.

Here, petitioner argued that she was effectively defined the benefits of the public school in which she was enrolled because of continual, severe sexual harassment perpetrated by one of her classmates.

The Court previously established that a recipient of federal funds intentionally violates Title IX, and can therefore be liable for private damages, where that recipient is “deliberately indifferent” to known acts of teacher-on-student sexual harassment. See Gebser v. Lago Vista Independent School Dist., supra, at 290-291, 118 S.Ct. 1989.

Here, the Court extened the Gebser deliberate indifference standard to be applicable not only to teacher-on-student sexual harassment, but also to student-on-student sexual harassment. The Court limited the availability of damages under Title IX to cases where the recipient exercises substantial control over the harasser and the context in which the known harassment occurs. It then reinstated petitioner’s complaint and remanded for further proceedings.

In the aftermath of the line of cases culminating in Monroe and establishing a private cause of action under Title IX for student-on-student sexual harassment, commentators have noted the potential usefulness of this precedent for victims of harassment on the basis of sexual orientation. Petitioners have already tested the theory that discrimination on the basis of gender may include discrimination on the basis of deviation from gender stereotypes. According to this argument, when a student is harassed because of his or her attraction to members of the same sex, he or she is essentially harassed because of deviation from the stereotype that boys should be attracted to girls and girls should be attracted to boys. See, for example:


Additional Materials:

Fisher v. Texas