Strict scrutiny for women!

June 03, 2024 | By ERIN WILCOX
Strict Scrutiny for Women

American women gained the right to vote on August 18, 1920. Despite some hyperbolic handwringing and predictions of doom—But who will watch the children? Their fathers??—the world did not end with the passing of the 19th Amendment.

In fact, women’s suffrage was the most significant legal paradigm shift for gender equality of the 20th century. The right to vote is one of our fundamental rights as Americans.

At almost a quarter of the way through the 21st century, it’s time for gender equality’s next legal paradigm shift: Sex discrimination claims should get strict scrutiny.

Levels of scrutiny

In federal court, there are three levels of judicial review for constitutional cases. Think of it as a pyramid:

Scrutiny Pyramid

At the very top you have strict scrutiny. This is the big one; the government almost never wins here. It’s reserved for either fundamental rights (like your freedom of speech or your right to vote) or for suspect classifications—things you can’t really control and can make you a target for discrimination (like race, national origin, or religion).

The next level down is intermediate scrutiny. The main occupant here is sex discrimination. This category doesn’t get strict scrutiny, but it gets more attention than our last category: rational basis.

Rational basis is for everything else—and under rational basis, the government almost always wins.

Rational basis is actually where sex discrimination cases landed until 1976, when Ruth Bader Ginsburg (back in her ACLU lawyer days) won a landmark Supreme Court case holding that sex discrimination claims deserved more judicial attention than just rational basis. The Supreme Court landed on intermediate scrutiny, which isn’t as good as strict scrutiny but was better than the alternative.

Except… intermediate scrutiny really isn’t good enough for many sex discrimination cases.

Think about it: Your biological sex is something you’re born with—just like your race or your national origin. And it’s definitely a target for discrimination.

So it’s time to move the ball forward again. A recent PLF victory in Iowa is a perfect example of why.

Equality wins in Iowa

Rachel Raak is a realtor and a single mom who somehow also finds the time to volunteer in her community. One of the things Rachel tried to volunteer for was to serve on a state commission that interviews the people who want to be appointed as judges to the Iowa Supreme Court and Iowa Court of Appeals.

Serving on this state judicial nomination commission isn’t a paying gig. It takes up free time that could be spent doing lots of other things. But Rachel thinks that who gets to be a judge in Iowa is really important, and she wants qualified people on the bench. Plus, Rachel has done this type of thing before—she previously served on a similar commission that interviews lower court judges.

But when Rachel applied for a seat on the commission, she was rejected. Not because she wasn’t qualified. Not because she filled out the paperwork wrong. Because she was female, and the commission seat in Rachel’s district was reserved for a man.

Iowa had a law that required the state judicial nominating commission to be gender balanced. That mean that some seats could be held only by men and some seats could be held only by women.

Rachel was floored. Her sex has absolutely nothing to do with whether she’d do a good job of interviewing potential judges. We’re not talking about being on the front lines in a combat zone; we’re talking about sitting in a conference room. This discrimination fit the requirements for strict scrutiny perfectly—it was a characteristic Rachel was born with and it had nothing to do with the law that was keeping her from serving.

But despite all this, when PLF took Rachel’s case to court, it wasn’t reviewed under strict scrutiny. It was a sex discrimination case, and the best it would get was intermediate scrutiny.

The Supreme Court has said a lot of powerful things about racial discrimination over the years, like how it’s immoral, wrong, and destructive. It’s hard not to think that this applies to sex discrimination too. Why shouldn’t sex discrimination get strict scrutiny—at least where biological differences between the sexes aren’t relevant?

This is an idea whose time has come.

Not everyone has PLF to fight on their side, but Rachel did, and her story has a happy ending. First, even under intermediate scrutiny, PLF won Rachel’s case in federal court. The judge held that the law requiring a gender balance on the state judicial nominating commission violated the Equal Protection Clause of the Fourteenth Amendment and told the state to stop enforcing the law immediately.

Iowa Torch

Awesome though it was, PLF’s legal victory applied only to one commission. What about the hundreds of other Iowa boards and commissions that also kept women from serving in seats reserved for men and men from serving in seats reserved for women?

Encouraged by our court win and supported by PLF’s legal policy team, Iowa Governor Kim Reynolds signed a bill in March throwing out all of Iowa’s gender balance laws. Close by were PLF attorney Laura D’Agostino and PLF client Chuck Hurley, who both stood with Rachel in her fight to be treated as a person, not a quota.

Iow bill signing

At the signing ceremony, the governor emphasized that our focus should always be on finding the most qualified people for public service, regardless of gender. She’s right. Women—and men—are first and foremost unique individuals, not just interchangeable members of our sex.

It’s time our constitutional law reflected that.