Here’s why Equal Protection may not protect everyone equally

Here’s why Equal Protection may not protect everyone equally

The Washington Post

Lauren Sudeall Lucas, Assistant Professor of Law
Georgia State University

Intersectionality is the acknowledgment that different forms of identity-based discrimination can combine to give rise to unique brands of injustice. For example, although women may generally face certain challenges in the workplace — unequal pay and the “motherhood penalty” are common — women of color may face different obstacles, including a bigger wage gap and the perception that they are too aggressive.

The Equal Protection Clause is the primary constitutional tool for addressing claims of identity-based discrimination. Finding out whether an incident of discrimination is legal typically begins with identifying the identity category — such as race or gender — on which the alleged discrimination is based. Depending on the category invoked, courts will apply varying levels of analysis to the claim, making it easier or harder for those accused of discrimination to defend their policies.

But for those who face discrimination at the intersection of multiple identity categories, it is not immediately clear how a court should respond. If someone claims that she has been denied the equal protection of the law because she is a black woman, should the alleged discrimination be examined with strict scrutiny, the most stringent standard of review in the court system, which is applied to classifications based on race? Or should it be treated with intermediate scrutiny, the lesser standard typically applied to gender classifications?…

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