Sex Discrimination and Equal Protection: The Question of a Suspect Classification


The concept of sexual equality has raised several controversial issues within American legal and social structures in the last decade. The traditional notions of the respective roles of men and women are undergoing radical change, as women increasingly demonstrate their importance and competence in formerly male-dominated areas. Yet the American legal system, though often providing leadership in social evolution, appears to have been somewhat hesitant to assert itself regarding the issues of sexual discrimination and equal rights.

In the area of equal protection, the courts have yet to formulate a definitive doctrine to deal with all issues involving discrimination. The lack of a clear standard has resulted in confusion, inconsistency and apparent illogic in judicial opinions. This is particularly conspicuous in instances of sex-based discrimination: the standard of appropriate judicial review has yet to be determined. The physical attribute of sex has neither been accepted nor rejected as a suspect classification. Without standards to guide them, neither the courts nor the community know the permissible limits of discrimination; without the greater judicial protection that a suspect classification mandates, sexually discriminatory laws and practices will continue to find support as the courts hesitate to declare them unconstitutional.

This Note will consider, first, the legal history of sex-based discrimination, and second, the various standards the courts, particularly the Supreme Court, have applied to this issue. The major portion of this note will be concerned with an examination of the recent case of Kahn v. Shevin and an analysis of its impact in the area of sex-based discrimination in light of subsequent Supreme Court decisions.

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"As a matter of principle, amending the Constitution to include sex equality as a fundamental human right will send a clear public message that women are no longer to be treated as second-class citizens."