An Intersectional Critique of Tiers of Scrutiny

Abstract This chapter examines how the tiers-of-scrutiny framework in Equal Protection law reproduce “single-axis” reasoning that obscures the intersectional experiences of Black women. It begins by revisiting Demarginalizing the Intersection of Race and Sex to show how courts historically deny Black women recognition as both racial and gendered subjects, using cases such as DeGraffenreid v. General Motors to expose whiteness as the hidden baseline for gender. The chapter then critiques Justice Powell’s Bakke concurrence for exemplifying “colorblind intersectionality,” where white women function as the default subjects of gender, erasing Black women from constitutional analysis. It further argues that the current tiers-of-scrutiny regime—strict for race and intermediate for gender—reinforce racial hierarchies by treating intersectional affirmative action efforts aiding Black women as more constitutionally suspect than those benefiting white women. Finally, the chapter calls for applying intermediate scrutiny to race-conscious, gender-based affirmative action policies as a provisional strategy while urging scholars and courts to confront the broader “either/or” frameworks that marginalize Black women in Equal Protection jurisprudence.