Most of the materials in this [unit] explore the development of constitutional and statutory doctrines since the early 1970s, after the Supreme Court began applying principles derived from earlier civil rights cases to challenges to sex-based discrimination. After some experimentation with the appropriate standard of review that should be applied to challenges brought under the Fourteenth Amendment of the Constitution, the Court came to settle on the standard that a classification "must serve important governmental objectives and must be substantially related to achievement of those objectives," Craig v. Boren, 429 U.S. 190, 197 (1976), or, as later stated that it be supported by "an exceedingly persuasive justification," See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994). Within this "intermediate" standard for review, courts have responded to challenges to state-created sex-based classifications by examining the underlying assumptions of these classifications and how well the classification based on these assumptions "fits" the purposes used to justify them. In a sense, both questions are designed to identify whether two individuals or groups are similarly situated and thus entitled to equal treatment. Once the underlying assumptions are identified, the assumptions are tested empirically to determine if they are factually accurate or based on overboard or archaic stereotypes about women.

If a classification is based on inaccurate empirical assumptions, it fails. Even where the assumptions are to some extent accurate, however, standard equity analysis does not end. First, the assumptions may be true of women in general, but not true of each individual woman; in such cases, the equality principle incorporates the concept of individual autonomy, requiring that each woman be given the opportunity to show eligibility for the desired benefit on the same basis as men. Second, classifications based on stereotypes may be impermissible even if true (or partially true), because they help to perpetuate the stereotypes, thereby reinforcing the conditions that make those classifications seem plausible. Third, even if the classifications identify accurate differences between men and women, they may violate formal equality principles if their use is not substantially related to the purposes they purport to serve.

Some problems of sex equality are masked because the rule or practice is based on criteria that appear to be sex-neutral, such as height and weight requirements, but impact disproportionately upon women. While formal equality might appear to provide no grip on such criteria, the principle that likes be treated alike requires that such criteria be justified by the actual requirements of the job, lest stereotyped expectations (airline stewardess = beautiful women; firefighters = strong men) govern what kinds of people have what kinds of job opportunities. Formal equality insists not only that those who are similarly situated be treated alike, but that stereotypes and over-generalizations not dictate who is determined to be similarly situated to whom.

Formal equality applies to sex-based classifications that discriminate against men, as well as those that discriminate against women. In formal equality terms, the goal is equal treatment for all, not just women. Extending formal equality principles to rules that discriminate against men, or favor women, might also be justified on the grounds that rules that appear to benefit women instead promote attitudes and expectations about women, including their dependency or status as victims, that disadvantaged them across a wide spectrum of social contexts. Those who offer this rational may favor formal equality as a strategy, but insofar as their choice of principle is based on its woman-centered results or outcomes, they already have their foot in the door of substantive equality, examined in [unit] 3.

Throughout this [unit] it is important to keep in mind both the benefits and the limitations of formal equality. As will be apparent, much has been accomplished, and many societal inequities can be addressed most readily on formal equality grounds. But what is left after formal equality has done its work? Look critically not only at formal equality as an analytical tool of gender reform but at the criticisms made against it. To what extent do these criticisms identify defects in formal equality analysis, and to what extent might they reflect, instead, the failure to apply formal equality analysis properly? Which objections are ones of principle? Which ones differences of strategy? Is there a distinction?