Did you know that your rights under the law may be judged as less fundamental than someone else’s based on the type of discrimination you might be experiencing? Sounds unfair, right? The following provides more of an explanation and what you can do about it.

Interview of Damara Fredette, Esq, conducted by Linda Salzer, co-chair of Communications/Publicity for the Alice Brigade of the League of Women Voters of Saratoga County.

Q: What is scrutiny?

A: In the context of judicial review, scrutiny typically involves analyzing whether a particular law or government action complies with constitutional principles, such as fundamental rights or equal protection under the law. Depending on the nature of the rights involved and the classifications at issue, three different levels of scrutiny may be applied.

Q: What are the three levels of scrutiny?

• Rational basis review – the law is legitimately and reasonably related to a government interest

• Intermediate or heightened scrutiny – the law is important and closely related to a government interest

• Strict scrutiny (the highest standard) – the law is extremely important/compelling and is narrowly tailored to the government interest

Q: Which standard of scrutiny is used for gender discrimination?

A: Intermediate scrutiny

Q: Is Intermediate scrutiny a less strict standard?

A: Yes. Simply put, issues involving women’s rights, including sex discrimination and access to reproductive choices, are analyzed under the intermediate scrutiny standard of review.

Q: Why do women’s rights only fall under intermediate scrutiny?

A: Even though strict scrutiny review is applied with race discrimination, with the premise that one cannot control the race they're born into and there are no inherent differences between the races, gender discrimination can't seem to shake outdated notions that the biological differences between the genders justify inconsistent laws, which inevitably negatively impact women.

Q: What is the impact of using intermediate scrutiny and not strict?

A: Without a “strict scrutiny” standard being applied, sex-discrimination can continue without consistent and effective regulation by the legal system.

Q: What is an example of where intermediate scrutiny was successfully applied in relation to gender discrimination?

A: 1996 Supreme Court case U.S. v Virginia, 518 U.S. 515 (1996), where Virginia Military Institute excluded female students from attending. The justification for excluding women was based on overbroad generalizations about women. This case added that for the gender classification to be substantially related to the government interest/purpose, it cannot create or perpetuate legal, economic, or social inferiority of women. Writing for the majority, Associate Justice Ruth Bader Ginsburg found that VMI had failed to show “exceedingly persuasive justification” for its gender-based admissions policy and was in violation of the Equal Protection Clause of the 14th Amendment.

Q: Is there anything that can be done about this lower level of scrutiny?

A: If New York State passes the Equal Rights Amendment in November, those same issues would be considered on par with issues like race and then strict scrutiny review would apply.

Q: Please summarize again: Why does this matter?

A: The ERA must pass in New York State to elevate “women’s rights” to the highest level of judicial review, recognizing that women’s rights are human rights and must be afforded the same protections as other fundamental rights.