In a 2022 law review article called Sex Neutrality, I adopt the classification of sex in American legal history as being in three successive overlapping phases starting with structural sexism, followed by sex skepticism, with sex blindness either already here (in come contexts) or on the horizon (in others). Chapter Seven of my new book On Sex and Gender makes this sequence accessible for a general audience, taking the reader on an adventure that begins with Myra Bradwell's case against Illinois (1872), through the battles over the Equal Rights Amendment, the groundbreaking sex discrimination cases of the 1970s starting with Reed v. Reed (1971) that marked the first turn from structural sexism to sex skepticism, the dialing up of the skepticism we see in the cases through the 1980s, and the race and sex discrimination cases of the early 1990s that immediately precede United States v. Virginia (1996).
In United States v. Virginia—known as VMI for the defendant Virginia Military Institute—the Court faced the choice whether to continue to be (by that point highly) skeptical of sex classifications or to move to sex blindness as it had just done in a set of cases that involved affirmative not subordinating race discrimination. In the book, I join others who have argued that it chose not to take this last step in part because the justices, including Ruth Bader Ginsburg and Sandra Day O'Connor, agreed that sex is importantly different from race. Here's how I put the point:
Ginsburg's VMI opinion also appears to be a response to how equal-protection law had developed in the three short years from 1993, when she joined the Court, through 1996 when VMI was decided. The justices had been debating the costs and benefits of sex blindness—il n'y a pas de difference entre les hommes et les femmes—at the same time as they were debating the costs and benefits of race blindness, i.e, of "eliminat[ing] entirely from governmental decisionmaking such irrelevant factors as a human being's race."
Given the opportunity finally to cement the analogy of sex to race and formally to take sex over the line to strict scrutiny, Ginsburg chose instead to distinguish between the two. In so doing, her opinion not only froze in place O'Connor's approach from Hogan, but it added a list of objectives that could make it possible for a sex-based classification to pass muster—objectives that, after Adarand, would be insufficient as justifications for race-based classifications.
