When Should Differences Make a Difference

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 t...