The Fallacy of the Intermediate Scrutiny Analysis

Desiree Palomares



The Equal Protection Clause of the U.S. Constitution guarantees that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”[1] In cases alleging discrimination under the Equal Protection Clause, the Supreme Court has outlined three different levels of scrutiny for courts to employ depending on the nature of the classification: strict, intermediate, and rational basis.[2] For gender classifications, the seminal case, Craig v. Boren, established intermediate scrutiny—a standard of review lower than strict scrutiny but more exacting than rational basis scrutiny.[3] Intermediate scrutiny requires the statutory classification to have an exceedingly persuasive justification that substantially relates to an important governmental objective.[4] If the court finds, however, that the statute does not discriminate on the basis of gender, then the statute is entitled to a rational basis review, which merely requires the statutory classification to be “rationally related to a legitimate governmental purpose.”[5] Further, if the statute is facially gender neutral but disproportionately and adversely impacts one gender, then invidiousness is required to employ intermediate scrutiny review.[6] However, invidiousness is not required for facially discriminatory laws.[7]

Free the Nipple-Fort Collins v. City of Fort Collins

The Tenth Circuit applied intermediate scrutiny when faced with a public nudity ordinance in Fort Collins that required women to cover their breasts below the areola but did not proscribe the same for men.[8] The main issue in Free the Nipple-Fort Collins v. City of Fort Collins was whether the city ordinance violated the Equal Protection Clause by distinguishing between the male and female nipple. The dispute arose when the City of Fort Collins enacted the ordinance and Free the Nipple, an unincorporated association, and two individuals, Brittany Hoadland and Samantha Six (the plaintiffs), responded by suing the City, alleging that the ordinance was unconstitutional and asking for a preliminary injunction.[9] The district court found the ordinance unconstitutional and granted the requested injunction. The City of Fort Collins appealed to the Tenth Circuit.[10]

On appeal, the Tenth Circuit decided that the Fort Collins ordinance was facially discriminatory towards women, rejecting the City’s argument for rational basis review.[11] Thus, the court applied the intermediate scrutiny standard.[12] The court conceded that there are justifiable differences between men and women;[13] however, the Fort Collins ordinance in particular was premised on generalizations about the way women are, rather than an undeniable difference between the genders.[14] The Tenth Circuit emphasized that when these inherent differences are involved, courts are to be particularly alert because these are the contexts in which gender classifications have been used to perpetuate inequality.[15] Thus, the court held that the Fort Collins ordinance failed under intermediate scrutiny review because the female-only toplessness ban engages in unnecessary and overbroad means to promote the governmental objectives of maintaining public order and promoting traffic safety.[16] According to the court, more accurate and impartial lines could be drawn to achieve the governmental objectives.[17]

            In his dissent, Circuit Judge Hartz opined that the Fort Collins ordinance was simply a law recognizing inherent biological, morphological differences between men and women.[18] To support his conclusion, Judge Hartz distinguished previous intermediate scrutiny cases from the Fort Collins case. He argued that previous intermediate scrutiny cases invalidated laws that were predicated on stereotypes, such as laws that denied men nursing positions simply because they were “less nurturing” than women. [19] Contrarily, Judge Hartz believed that the Fort Collins ordinance distinguished between genders for the legitimate purpose of reducing antisocial behaviors, not to reinforce stereotypes.[20] Accordingly, he argued that laws of public indecency should not be reviewed under heightened scrutiny; rather, he believed the ordinance should have been upheld under rational basis review.

Tagami v. City of Chicago

            In contrast to the majority opinion in Free the Nipple, the Seventh Circuit in Tagami v. City of Chicago, upheld a public nudity ordinance, reasoning that it furthered an important and substantial governmental interest.[21] The case involved a woman, Sonoku Tagami, who celebrated “Go Topless Day 2014” by walking in the streets of Chicago with paint on her breasts.[22] She was cited for violating a Chicago ordinance that prohibited nudity, and she subsequently filed a lawsuit alleging that the ordinance violated the Equal Protection Clause by banning only women from exposing their breasts.[23] The City argued that the ordinance treats men and women alike by prohibiting exposure of both male and female body parts that are conventionally considered to be intimate and private.[24]

The Seventh Circuit, like the Tenth Circuit, recognized that the public nudity law was facially discriminatory and thus applied intermediate scrutiny.[25] However, the Seventh Circuit, unlike the Tenth Circuit, found that the sex-based classification was compatible with the Equal Protection Clause because it served important governmental objectives and the discriminatory means employed were substantially related to the achievement of those objectives.[26] Namely, the court reasoned that the purpose of promoting traditional moral norms and public order are sufficient government interests to survive intermediate scrutiny.[27]

The dissent in Tagami v. City of Chicago, authored by Circuit Judge Rovner, criticized the City’s argument as boiling down to “a desire to perpetuate a stereotype that female breasts are primarily the objects of desire, and male breasts are not.”[28] Further, the dissent used similar reasoning as the Colorado district court in Free the Nipple that courts should not continue to perpetuate stereotypes merely because it is historically part of our culture.[29] Indeed, the dissent reasoned that upholding this ordinance would enforce a stereotype that the primary functional difference between the two breasts is sexual; when in reality, the primary biological difference is the fact that the female breast has the potential to provide milk, whereas the male breast does not.[30] Accordingly, Judge Rovner asserted that courts should not accept stereotypes merely because they are historically part of our culture; the stereotypes should have to withstand sufficient justification under intermediate scrutiny.[31] Nonetheless, the dissent did not go as far as the Tenth Circuit to say that Tagami was entitled to relief.[32] Instead, the dissent concluded that the case was prematurely resolved on a motion to dismiss.[33]

The “Stereotype” Inquiry

Courts grapple with whether the distinction between the female and male nipple rests on a stereotype or a legitimate government interest. Indeed, it is uncontested that the male nipple is more commonly presented in the public sphere than the female nipple. But, whether females should fear criminal charges for presenting their nipples, while males can freely reveal their nipples, creates a viable case for discrimination. Further, as the dissent in Tagami notes, there is no biological basis to support the notion that the female breast is a sexual feature.[34] Rather, the biological difference is that the female breast can potentially produce milk to feed a baby.[35]

Despite the fact that intermediate scrutiny includes an interest and tailoring component, courts almost exclusively focus on whether the policy at issue reinforces a stereotype.[36] To put this notion into context, one 1872 court decision upheld a statute which banned women from being admitted to the legal profession, relying on the “wide difference in the respective spheres and destinies of man and woman.”[37] Another case upheld a statute prohibiting women from working as bartenders to protect women from the moral dangers associated with the liquor industry.[38] This stereotype inquiry is evident in Judge Hartz’s dissent in Free the Nipple, when he asserts, “When Plaintiffs publicly bare their breasts, . . . they cannot determine how others will view their breasts. . . . Some, perhaps most, may react to Plaintiffs in a way that treats their breasts as sex objects.”[39] This worry that women need to be protected, when put into the context of past cases relying on the same reasoning, shows how gender stereotypes can shift dramatically over time.[40]

Although the Supreme Court has designated the intermediate scrutiny standard for gender-based classifications, there is little guidance for the proper application of the standard.[41] Thus, courts use this stereotype analysis, despite the fact that the term “stereotype” is largely undefined, making the standard subject to a wide range of interpretations, as evidenced by recent public nudity cases.[42] This lack of a defined standard leaves the courts with the ability to decide what action or behavior constitutes a stereotype based on a wide range of societal beliefs, rather than a reliable test prescribed by the Court. Intermediate scrutiny permits justified gender discriminatory policies because some differences between men and women are inevitable; however, parsing out which gender differences justify disparate application of the law has proved challenging.[43]

Under intermediate scrutiny, courts have wide discretion to decide which differences between men and women justify differing treatment. And, in cases such as the female and male nipple, courts inconsistently conclude what constitutes a stereotype versus a justifiable difference. Accordingly, to more accurately protect the rights of the people and to eliminate gender discriminatory statutes, the Supreme Court should consider a more stringent test to better guide lower courts in this determination. This guidance is especially necessary due to precedent which has upheld ordinances that blatantly discriminate between the genders.[44] Free the Nipple and Tagami are keen examples of this issue—two courts trying to apply the correct analysis on the same issue but coming to completely different outcomes due to the vague nature of the intermediate standard. Thus, it is imperative that the Court adopt a test to help guide a proper intermediate scrutiny review in Equal Protection disputes beyond the ambiguous “exceedingly persuasive justification” framework.

[1] U.S. Const. amend. XIV, § 1.

[2] Lindsey Sacher, From Stereotypes to Solid Ground: Reframing the Equal Protection Intermediate Scrutiny Standard and its Application to Gender-Based College Admissions Policies, 61 Case W. Res. L. Rev. 1411, 1412 (2011).

[3] 429 U.S. 190, 197 (1976).

[4] United States v. Virginia, 518 U.S. 515, 533 (1996).

[5] Clark v. Jeter, 486 U.S. 456, 461 (1988).

[6] See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 259 (1979).

[7] Id.

[8] Fort Collins, Colo., Mun. Code § 17-142(b).

[9] Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792, 792 (10th Cir. 2019).

[10] Id. at 795.

[11] Id. at 800.

[12] Id.

[13] Id. at 801 (citing Nguyen v. INS, 533 U.S. 53, 58–59 (2001)).

[14] Id.

[15] Id. at 805 (citing Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 145–46 (2010)).

[16] Id. at 802.

[17] Id. at 808 (citing Sessions v. Morales-Santana, 137 S. Ct. 1678, 1693 (2017)).

[18] Id. at 809 (Hartz, J., dissenting).

[19] Id. at 808 (Hartz, J., dissenting).

[20] Id. at 812.

[21]   Id.

[22]   Id.

[23]   Id.

[24]   Id. at § 10114 (emphasis added).

[25]   Id.

[26]   Id. at § 10113.

[27]   Id. at § 10114.

[28]   Id.  

[29]   Id. at § 10113.

[30]   U.S. Const. art. I, § 8, cl. 3.

[21] Tagami v. City of Chicago, 875 F.3d 375 (7th Cir. 2017).

[22] Id. at 377.

[23] Id.

[24] Id. at 379–80.

[25] Id.

[26] Id. at 380 (citing United States v. Virginia, 518 U.S. 515, 533 (1996)).

[27] Id. at 379–80.

[28] Id. at 382 (Rovner, J., dissenting).

[29] Id. (citing Free the Nipple v. City of Fort Collins, 237 F. Supp. 3d 1126, 1133 (D. Colo. 2017)) (Rovner, J., dissenting).

[30] Id. (Rovner, J., dissenting).

[31] Id.

[32] See id. (Rovner, J., dissenting).

[33] Id. at 384 (Rovner, J., dissenting).

[34] Id. at 382 (Rovner, J., dissenting).

[35] Id. (Rovner, J., dissenting).

[36] Sacher, supra note 2, at 1417; see also Miss. Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982) (noting that the “statutory objective” cannot reflect “archaic and stereotypic notions” (citing Frontiero v. Richardson, 411 U.S. 677, 684–85 (1973) (plurality opinion))).

[37] Sacher, supra note 2, at 1420 (citing Bradwell v. Illinois, 83 U.S. 130, 141 (1872) (Bradley, J., concurring)).

[38] Id. (citing Goesart v. Cleary, 355 U.S. 464, 466 (1948)).

[39] Free the Nipple, 916 F.3d at 811 (Hartz, J., dissenting).

[40] Sacher, supra note 2, at 1420.

[41] Id. at 1412.

[42] Id.

[43] Id. at 1416.

[44] See Califano v. Webster, 430 U.S. 513 (1977) (addressing the constitutionality of a tax provision that allowed women to eliminate more low-earning years from the calculation of their retirement benefits than it allowed for men).