It does not matter whether the law in question discriminates against women (as most sex-discriminatory legislation did in earlier eras), or against men, as in this case. Both kinds of discrimination are subject to the same rigorous heightened scrutiny. The Oklahoma law struck down in the Craig case also discriminated against men: under it, 18- to 20-year-old men, but not women of the same age, were forbidden to buy 3.2% beer. Heightened scrutiny also applies regardless of whether the discriminatory law is motivated by sexist prejudice. Even well-intentioned discrimination is presumptively unconstitutional – and for good reason. History shows that seemingly “benign” race and sex discrimination by the state often causes great harm. Finally, the Court has also made clear that the same standards apply to discrimination by federal government, as by the states.

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One legal commentator suggests that Trump’s policy might survive legal challenge based on 1970s decisions holding that discrimination on the basis of pregnancy does not qualify as sex discrimination. But Trump’s plan does not discriminate between people who are pregnant and those who are not. It discriminates between new mothers and new fathers. It is not a law that, as the Court put it in a 1974 ruling, classifies on the basis of the “physical condition” of pregnancy and thereby avoids “discrimination based upon gender as such.” A law that creates a benefit for new mothers but not new fathers clearly does “discriminate based upon gender as such.” Given the existence of adoption and surrogacy, a substantial number of mothers are not even people who have just gone through a pregnancy.