I n its sex discrimination decisions, the United States Supreme Court not only has defined the applicability of the equal protection guarantees of the Constitution and the nondiscriminatory policies of federal statutes, but also has rejected the use of gender stereotypes and has continued to recognize the discriminatory effect of gender hostility in the workplace and in schools. This report focuses on sex discrimination challenges based on the equal protection guarantees of the Fourteenth and Fifth Amendments; the prohibition against employment discrimination contained in Title VII of the Civil Rights Act of 1964; and the prohibition against sex discrimination in education contained in Title IX of the Education Amendments of 1972. Although this report focuses on recent legal developments in each of these areas, this report also provides historical context by discussing selected landmark sex discrimination cases. Constitutional challenges that allege discrimination on the basis of sex are premised either on the equal protection guarantees of the Fourteenth Amendment or the equal protection component of the Fifth Amendment. To maintain an equal protection challenge, government action must be established; that is, it must be shown that the government, and not a private actor, has acted in a discriminatory manner. While the Fourteenth Amendment prohibits discriminatory conduct by the states, the Fifth Amendment forbids such action by the federal government. The Fourteenth Amendment provides, in relevant part: "No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws ." Although the Fourteenth Amendment requires equal protection, it does not preclude the classification of individuals. The Court has noted that the Constitution does not require things which are "different in fact or opinion to be treated in law as though they were the same." A classification will not offend the Constitution unless it is characterized by invidious discrimination. The Court has adopted three levels of review to establish the presence of invidious discrimination: 1. Strict scrutiny. This most active form of judicial review has been applied where there is either a suspect classification, such as race, national origin, or alienage, or a burdening of a fundamental interest such as privacy or marriage. A classification will survive strict scrutiny if the government can show that it is necessary to achieving a compelling interest. Generally, statutory classifications subject to strict scrutiny are invalidated. 2. Intermediate scrutiny. This level of review is not as rigorous as strict scrutiny. A classification will survive intermediate scrutiny if it is substantially related to achieving an important government objective. Sex classifications are subject to intermediate scrutiny. 3. Rational basis review. This least active form of judicial review allows a classification to survive an equal protection challenge if the classification is rationally related to a legitimate government interest. This level of review is characterized by its deference to legislative judgment. Most economic regulations are subject to rational basis review. The Court's adoption of intermediate scrutiny for sex classifications did not occur until 1976. In Craig v. Boren , the Court declared unconstitutional an Oklahoma statute that prohibited the sale of "nonintoxicating" 3.2% beer to males under the age of 21 and to females under the age of 18. Females between the ages of 18 and 21, however, were allowed to purchase 3.2% beer. Although the Court agreed with the state's argument that the protection of public health and safety is an important government interest, it found that the gender classification employed by the statute was not substantially related to achieving that goal. The statistical evidence presented by the state to show that more 18 to 20-year-old males were arrested for drunk driving and that males between the ages of 17 and 21 were overrepresented among those injured in traffic accidents could not establish that the statute's gender classification was substantially related to ensuring public health and safety. In establishing an intermediate level of review for sex classifications, the Craig Court identified what has been a common theme in sex discrimination cases under the Fourteenth Amendment: stereotypes and generalizations about the sexes. In Craig , the Court acknowledged its previous invalidation of statutes that premised their classifications on misconceptions concerning the role of females. The Court's rejection of the use of stereotypes may be seen in many of the cases in this area. The Court's more recent decisions similarly allude to the use of stereotypes and generalizations. For example, in J.E.B. v. Alabama , the Court determined that the state could not use its peremptory challenges to exclude male jurors in a paternity and child support action. In reaching its conclusion, the Court reviewed the historical exclusion of women from juries because of the belief that women were "too fragile and virginal to withstand the polluted courtroom atmosphere." In J.E.B. , the Court questioned the state's generalizations of male jurors being more sympathetic to the arguments of a father in a paternity action and female jurors being more receptive to the mother. The Court maintained that state actors who exercise peremptory challenges in reliance on gender stereotypes "ratify and reinforce prejudicial views of the relative abilities of men and women." The Court feared that this discriminatory use of peremptory challenges not only would raise questions about the fairness of the entire proceeding, but also would create the impression that the judicial system had acquiesced in the denial of participation by one gender. In U.S. v. Virginia , the Court conducted a more searching form of intermediate scrutiny to find unconstitutional the exclusion of women from the Virginia Military Institute (VMI). Although the Court reiterated that a classification must be substantially related to an important government interest, the Court also required the state to establish an "exceedingly persuasive justification" for its actions. Virginia advanced two arguments in support of VMI's exclusion of women: first, the single-sex education offered by VMI contributed to a diversity of educational approaches in Virginia; second, VMI employed a unique adversative method of training that would be destroyed if women were admitted. After reviewing the history of Virginia's educational system, the Court concluded that VMI was not established or maintained to promote educational diversity. In fact, VMI's "historic and constant plan" was to offer a unique educational benefit to only men, rather than to complement other Virginia institutions by providing a single-sex educational option. Further, the Court recognized Virginia's historic reluctance to allow women to pursue higher education. Any interest Virginia had in maintaining educational diversity seemed to be "proffered in response to litigation." In addressing Virginia's second argument, the Court expressed concern over the exclusion of women from VMI because of generalizations about their ability. While acknowledging that most women would probably not choose the adversative method, the Court maintained that some women had the will and capacity to succeed at VMI. Following J.E.B. , the Court cautioned state actors not to rely on overbroad generalizations to perpetuate patterns of discrimination. While the Court believed that the adversative method did promote important goals, it concluded that the exclusion of women was not substantially related to achieving those goals. After determining that VMI's exclusion of women violated the Fourteenth Amendment, the Court reviewed the state's remedy, a separate program for women. Virginia established the Virginia Women's Institute for Leadership (VWIL) following the adverse decision of the court of appeals. Unlike VMI, VWIL did not use the adversative method because it was believed to be inappropriate for most women, and VWIL lacked the faculty, facilities, and course offerings available at VMI. Because VWIL was not a comparable single-sex institution for women, the Court concluded that it was an inadequate remedy for the state's equal protection violations. VMI subsequently became coeducational. The Court's most recent equal protection pronouncements with respect to sex discrimination both involved immigration issues. In Miller v. Albright , the Court considered a challenge to §309 of the Immigration and Nationality Act. The petitioner, the child of an American father and a Filipino mother, contended that §309 imposed additional requirements for establishing American citizenship when a child is fathered by an American citizen outside of the United States. For children born of a citizen mother and an alien father, citizenship is established at birth. However, for children born of a citizen father and an alien mother, citizenship is not established until the father or the child takes affirmative steps to confirm their relationship by the child's eighteenth birthday. In this case, the petitioner's father did not attempt to establish his relationship with his daughter until after her eighteenth birthday. Thus, the petitioner's application for citizenship was denied. The case produced five different opinions. While six justices agreed that the petitioner's complaint should be dismissed, they provided different reasons for this conclusion. Justices Stevens and Rehnquist contended that the petitioner's complaint lacked merit, maintaining that §309's distinction between "illegitimate" children of U.S. citizen mothers and "illegitimate" children of U.S. citizen fathers is permissible under heightened scrutiny because it is "eminently reasonable and justified by important Government policies." Justices O'Connor and Kennedy contended, however, that the distinction could withstand only rational basis review and should not satisfy the kind of heightened scrutiny Justice Stevens seemed to conduct. Setting aside the issue of §309's constitutionality, Justices O'Connor and Kennedy believed that the petitioner lacked the standing necessary to even pursue her claim. Finally, Justices Scalia and Thomas contended that the petitioner's complaint should be dismissed because the Court lacks the power to confer citizenship. Having acknowledged that Congress has the exclusive authority to grant citizenship, Justices Scalia and Thomas believed that there was no need to address the constitutionality of §309. Justices Ginsburg, Breyer, and Souter dissented in opinions written by Justices Ginsburg and Breyer. In their separate opinions, Justices Stevens, O'Connor, Ginsburg, and Breyer each addressed the petitioner's argument that §309 invokes gender stereotypes.