When Should Differences Make a Difference:

Abstract

This study criticizes the Supreme Court's current approach to constitutional gender equality and suggests a new type of review for gender-based classifications under the equal protection clause. The debate over acceptable gender classification hsa forced the Court to decide whether distinctions on the basis of gender-specific physical characteristics discriminate on the bsais of gender, whether legislation on the basis of generalized physical characteristics is discriminatory when applied to individuals who deviate from the average, whether states reinforce sex role stereotypes when legislating on the basis of gender-specific physical characteristics, and whether legislation that purports to benefit women actually serves to further inequality. In wrestling with this issues, especially the last, the Court has also been forced to explain both logically and legally why racial classifications are different from gender classifications The purpose of this study is twofold: the first objective is to argue that the Supreme Court should adopt an approach to legally sanctioned gender differentiation that would review gender classifications with the same hostility as racial classifications; related to this is the second objective, which is to show that a strict-scrutiny equal protection analysis is compatible with a special treatment approach for pregnancy benefits legislation. The two tasks will be undertaken by presenting critiques of the Court's current approach to gender equity and by suggesting an alternative direction for gender-based equal protection doctrine, one that will accomodate positive pregnancy legislation.