Scrutinizing Gender Discrimination: Should Courts Protect Gender with Suspect Classification?

Suspect classification is a judicial process by which classes of people are determined as either suspect, quasi-suspect, or not suspect at all due to a combination of five factors: 1) minority status, 2) discrimination history, 3) political powerlessness, 4) an immutable trait, and 5) trait relevance as it relates to a discriminatory law in question. Laws that discriminate against a suspect class become immediately subject to strict scrutiny while most discriminatory laws only need to pass a rational basis test. Craig v. Boren (1976) established a precedent for the class of sex, which thereafter became subject to an intermediate level of scrutiny as a quasi-suspect class. With a more visible distinction between sex and gender today, this study seeks to determine whether gender rather than sex may become protected through heightened scrutiny by applying factors for suspect classification. In a call for heightened scrutiny for both gender and sex, this thesis argues that the suspect classification of both classes should include combinations of subclasses between gender, sex, and any other protected class. The central thesis employs a content analysis of case law, statutory law, and administrative law as it discriminates against classes of people with varying protection under the court system in the United States. In the question of whether courts should protect gender with suspect classification, the main argument calls for such action but if and only if an intersectional approach to protecting gender along with sex at a heightened level of judicial scrutiny is applied by individual judges on higher courts of review.