The level of scrutiny that federal judges apply to cases involving gender discrimination is intermediate scrutiny. This means that the government must show that the challenged law is substantially related to an important government interest. The government cannot simply show that the law is rationally related to an important government interest, as it would have to do if the law were challenged under rational basis scrutiny.
The intermediate scrutiny standard was first articulated by the Supreme Court in the case of Craig v. Boren, 429 U.S. 190 (1976). In Craig, the Court struck down an Oklahoma law that set different drinking ages for men and women. The Court held that the law was not substantially related to an important government interest, and that it therefore violated the Equal Protection Clause of the Fourteenth Amendment.
The intermediate scrutiny standard is a middle ground between the strict scrutiny standard, which is applied to cases involving discrimination based on race or national origin, and the rational basis scrutiny standard, which is applied to most other types of discrimination. The intermediate scrutiny standard is intended to strike a balance between the government's interest in regulating and the individual's right to equal protection under the law.
The intermediate scrutiny standard has two prongs:
1. The government must show that the challenged law is substantially related to an important government interest.
2. The government must show that the challenged law is the least restrictive means of achieving that government interest.
The government's burden of proof under intermediate scrutiny is more demanding than the burden of proof under rational basis scrutiny, but less demanding than the burden of proof under strict scrutiny.
In recent years, the Supreme Court has become increasingly skeptical of the intermediate scrutiny standard. In some cases, the Court has upheld laws that would not have survived under intermediate scrutiny in the past. This trend suggests that the Court may be moving towards a more relaxed standard of review for gender discrimination cases.
However, the intermediate scrutiny standard remains the law of the land, and it is likely to continue to be applied in cases involving gender discrimination for the foreseeable future.