Supreme Court to Consider Gender Discrimination Case

Supreme Court to Consider Gender Discrimination Case

The Supreme Court will hear oral arguments on November 10 in a reverse discrimination case.  The issue is when a foreign-born child born out of wedlock to a non-citizen and an American parent is to be considered a United States citizen.  Under the law then in effect (but since changed to be gender-neutral), the child can be considered a U.S. citizen only if the citizen parent had resided continuously in the United States for a period of a year (for a mother) or five years (for a father) after the age of 14.  Since the rules were less strict for a mother than for a father, a child denied citizenship and deported claimed gender discrimination.

Since this immigration double standard law has changed, the Supreme Court must have some interest in addressing the subject of gender discrimination and/or immigration policy.  Often in the past breakthroughs in sex discrimination standards have arisen when cases were brought by men.  For example, the cases that established “intermediate scrutiny” for government-imposed sexual distinctions arose in the context of males being deprived of some right given to females.  InCraig v. Boren, a man successfully challenged a state law that set a higher legal age for drinking for men, at 21, than women, at 18. The Supreme Court required that a gender classification used by the government must be designed to meet “important” ends and that the means employed are “substantially related” to the ends.  Was it a coincidence that the law was disadvantageous to men?  A few years later, the Supreme Court added to the standard, saying that a party defending the law carry the burden of “exceedingly persuasive justification” for the classification.   That case involved a man seeking to be admitted to a nursing program, that had excluded them.  (Mississippi Univ. for Women v. Hogan.)

If this case is debated on the gender issue, there may be interesting developments, or at least helpful language, devoted to whether men and women are equally parents.  In the workplace, as in the larger society, this is still an area where inequality is taken for granted.

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