This Note concludes that the distinctions in §§ 1401(a)(7) and 1409(a) impermissibly discriminate on the basis of gender and, therefore, violate the Constitution’s guarantee of equal protection.
Part I provides a background of equal protection principles, including the well-established standard the Supreme Court uses in analyzing gender discrimination claims. Part I also illustrates Supreme Court precedent by discussing three important cases dealing with gender discrimination in the INA. Part II presents §§ 1401(a)(7) and 1409(c) and describes the current split of authority among the circuit courts over the constitutionality of those provisions. Part III details why the gender-based distinctions in the INA are unconstitutional and proposes a gender-neutral solution to remedy the constitutional violation.