Gender-Based Affirmative Action and Reverse Gender Bias: Beyond Gratz, Parents Involved, and Ricci
51 Pages Posted: 7 Apr 2010
Date Written: April 7, 2010
The blockbuster race discrimination cases in recent years have all involved affirmative action and reverse discrimination. The Supreme Court has made it clear that race classifications, whether benign or invidious, will trigger rigid strict scrutiny analysis. In contrast, gender discrimination, whether benign or invidious, has never triggered strict scrutiny, but, rather, only the less rigorous intermediate scrutiny test. However, the Supreme Court has not directly confronted an equal protection challenge to a gender-based affirmative action plan since the 1980s, nor has it addressed the anomaly that, under current doctrine, affirmative action for women is easier to justify than race-based affirmative action. Not surprisingly, this has led to a circuit split as to whether strict or intermediate scrutiny should govern challenges to gender-based preferences.
This Article explicates the development of the Supreme Court’s jurisprudence on gender discrimination and the resulting race/gender anomaly. It examines the arguments for and against race-based affirmative action and reverse discrimination and their applicability to gender bias. It also compares how the European Union and other non-EU countries have used and validated gender-based affirmative action, particularly in the areas of corporate governance and political representation. Finally, it concludes that, because the Court’s gender jurisprudence recognizes the transformative potential of affirmative action and best advances the antisubordination goal of the equal protection guarantee, it should provide the framework for assessing the constitutionality of race-based affirmative action.
Keywords: gender discrimination, affirmative action, civil rights, law and society, sexuality and the law, constitutional law
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