Also known as:midlevel gender discrimination test · intermediate scrutiny · intermediate scrutiny test
Written by attorneys · grounded in primary & secondary sources — see below
A standard of judicial review under the Equal Protection Clause that requires gender classifications to serve important governmental objectives and be substantially related to achieving those objectives. The government bears the burden of proof and must supply an exceedingly persuasive justification that is genuine rather than hypothesized. The classification may not rest on overbroad generalizations that perpetuate the legal, social, or economic inferiority of women.
Sources & Authorities
How it applies
Common Examples
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Marital Property Signature Rule
Maya Malik and Maurice Marshall jointly own contaminated land eligible for a state remediation grant. State rules require only the husband to sign all encumbrances or sale agreements transferring the property. Maya challenges the rule after the agency refuses to process her solo application. The court applies the mid-level gender discrimination test and invalidates the requirement because it imposes an explicit gender line without an exceedingly persuasive justification substantially related to an important objective.
Cable Operator Content Mandate
Metro Bank operates a regional cable system and objects to a federal order requiring prominent placement of government conservation messages that displace fifteen percent of its own programming. The bank argues the mandate burdens its speech. The court applies intermediate scrutiny to the content-neutral speech rules and upholds the order after finding it advances important interests unrelated to suppression and is narrowly tailored.
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Cases
Study Supplements
Male-Only Internship Program
Miguel Mendoza's daughter applies to a state insurance commission internship open only to male college students on the theory that men are better suited to aggressive risk-assessment roles. The commission denies her participation. She sues, and the court applies the mid-level gender discrimination test. The policy fails because the justification rests on overbroad generalizations rather than a genuine important objective substantially related to the classification.
Illegitimacy Limitations Period
Malcolm McKinley seeks support for his nonmarital child under a state statute imposing a six-year limitations period for paternity suits while allowing marital children to seek support at any time. The state defends the rule as preventing stale claims. The court applies intermediate scrutiny and strikes the statute because the classification is not substantially related to an important governmental objective.
Clinic Buffer Zone Ordinance
Miles Montgomery owns a women's health center and challenges a city ordinance creating buffer zones that limit protest activity near the facility. The city claims the zones protect patient access. The court applies intermediate scrutiny to the content-neutral speech restriction and upholds the measure after determining it advances important interests and burdens no more speech than necessary.
Madsen v. Women’s Health Center, Inc.512 U.S. 753 (1994)
Trademark Registration Denial
Mercury Industries seeks federal trademark registration for a mark some view as disparaging. The PTO denies registration on that ground. The company sues, and the court applies strict scrutiny to evaluate the viewpoint-based restriction. The denial fails because it cannot survive the required scrutiny for classifications that suppress particular messages.
Matal v. Tam582 U.S. 218 (2017)
Common questions
Frequently Asked
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What burden does the government carry under the mid-level gender discrimination test?+
The government must supply an exceedingly persuasive justification showing that the gender classification serves important governmental objectives and is substantially related to achieving them. The justification must be genuine and may not rely on overbroad generalizations about the talents or capacities of men and women.
How does the mid-level gender discrimination test differ from strict scrutiny?+
The mid-level test requires only an important governmental objective and substantial relation rather than a compelling interest and narrow tailoring. Gender classifications therefore receive less rigorous review than racial classifications, which must satisfy strict scrutiny.
Can a statute survive the mid-level gender discrimination test if it rests on traditional assumptions about marital roles?+
No. A statute granting a husband unilateral authority over jointly owned marital property fails the test because it rests on outdated assumptions rather than a genuine important objective substantially related to the classification.
521 U.S. 507 (1997)Property
…holding attempted by RFRA. Even assuming RFRA would be interpreted in effect to mandate some lesser test, say, one equivalent to intermediate scrutiny, the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the…