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In any constitutional system, we must ask, as a foundational inquiry, when and why a government may distinguish between groups of constituents for purposes of allocating benefits or imposing penalties. For feminists and others with a stake in challenging inequalities, the rationales that a society deems acceptable for justifying these classifications are centrally important. Heightened scrutiny jurisprudence for sex-based and other distinctions may help capture some of the rationales that rest on stereotypes and outmoded biases. However, at the end of the day, whatever level of scrutiny is applied, the critical question at any level of review is whether, according to the decision maker, the government has adequately justified the distinction it has drawn.

For most official classifications, the rationales for differentiating among people are obvious and unremarkable, and the laws at issue provoke no challenges. Age-based rules that require only some people (youth) to attend school are a classic example. Similar are rules that restrict the issuance of drivers’ licenses to individuals without significantly impaired vision. In these instances, the government's line-drawing is linked to a demonstrable characteristic of the people who are burdened by the measure at issue.


Feminist Philosophy | Law | Law and Gender | Women's Studies


This material has been published in "Feminist Constitutionalism: Global Perspectives", edited by Beverley Baines, Daphne Barak-Erez, and Tsvi Kahana. This version is free to view and download for private research and study only. Not for re-distribution or re-use.