Here’s why Equal Protection may not protect everyone equally

[brer cat]

I found this opinion piece very interesting. She discusses how strictly defining who is "in" and who is "out" of protected categories leads to the exclusion of some who share the same discrimination, and may also make intersectional injury invisible.

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.

snip

Instead of asking whether discrimination is based on race or gender, we should ask whether it serves the same purpose as those kinds of discrimination do — further subordinating a group that is not in a position to prevent such subordination.

more...

http://www.washingtonpost.com/news/in-theory/wp/2015/09/23/heres-why-equal-protection-may-not-protect-everyone-equally/

[ismnotwasm]

1. That last paragraph is indeed a zinger

Instead of asking whether discrimination is based on race or gender, we should ask whether it serves the same purpose as those kinds of discrimination do — further subordinating a group that is not in a position to prevent such subordination. It becomes less important, then, whether we understand the experience of black women, or pregnant women, or Spanish-speaking Latinos, as one based on “race” or “gender,” and more important that we understand the ways in which the various forces operating on such individuals contribute to their oppression.

I wonder if we had an ERA amendment if it would be a legal stepping stone to address this? One of the unspoken, at the time, reasons for its defeat was the fear it would open the doors for Gay rights.