Author: Charmaine Seerane
INTRODUCTION
In B.P.J. v. West Virginia State Board of Education, the court blocked enforcement of the “Save Women’s Sports Act,” which bars male-birth-sex students from girls’ teams. Applied to a 13-year-old trans girl on puberty blockers, identifying as female since third grade, the law’s sole aim of excluding trans girls from girls’ sports violated rights, preventing her from participating in cross-country and track.South African affirmative action differs fundamentally from US programs due to contrasting constitutional frameworks. Unlike the US Constitution, South Africa’s explicitly authorizes measures to protect or advance persons disadvantaged by unfair discrimination (section 9(2)). While SA courts may draw persuasive guidance from US equal protection and affirmative action cases, they reject rigid scrutiny tiers like strict or intermediate review. Instead, the Constitutional Court applies context-specific guidelines tailored to SA’s unique history of racial oppression, ensuring transformative remedies align with the nation’s post-apartheid text and experience.This article compares US “levels of scrutiny” under the Equal Protection Clause, as seen in B.P.J. v. West Virginia, with South Africa’s section 36 limitations clause.
The Anatomy of U.S Judicial Review: Tiers of Scrutiny
Historical Evaluation
Strict Scrutiny
This is the highest level of scrutiny applied by courts to government actions or laws. The U.S. Supreme Court has determined that legislation or government actions that discriminate based on race, national origin, religion, and alienage must pass this level of scrutiny to survive a challenge that the policy violates constitutional equal protection. This high level of scrutiny is also applied whenever a “fundamental right” is threatened by a law, such as the right to marry. Strict scrutiny requires the government to prove that: There is a compelling state interest behind the challenged policy, and the law or regulation is narrowly tailored to achieve its result.
Intermediate Scrutiny
The next level of judicial focus on challenged laws is less demanding than strict scrutiny. For a law to pass intermediate scrutiny, it must: Serve a vital government objective and be substantially related to achieving the objective. This test was first adopted by the U.S. Supreme Court in 1976 and applies whenever a law discriminates based on gender or sex. Some federal appellate courts and state supreme courts have also used this level of scrutiny in cases involving sexual orientation. As with strict scrutiny, intermediate scrutiny also places the burden of proof on the government.
Rational Basis Review
This is the lowest level of scrutiny applied to challenged laws, and it has historically required very little for a law to pass as constitutional. Under the rational basis test, the person challenging the law (not the government) must prove either that the government has no legitimate interest in the law or policy or that there is no reasonable, rational link between that interest and the challenged law. Courts using this test are highly deferential to the government. They will often deem a law to have a rational basis if that law has any conceivable, logical basis, even if the government never provided one. This test typically applies to all laws or regulations challenged as irrational or arbitrary, as well as to discrimination based on age, disability, wealth, or felony status.
The “Quasi-Suspect” Classification
Before United States v. Virginia (VMI), courts were typically only allowed to analyse the stated purpose the state gave for its gender classification. In contrast, now courts will determine whether the state’s stated purpose is the true purpose behind the classification. The VMI decision (518 U.S. 515, 1996) changed this; it added that, for the gender classification to be substantially related to the government’s interest/purpose, it cannot create or perpetuate the legal, economic, or social inferiority of women.
The Burden on the state in B.P.J v West Virginia
That same court’s decision on the merits, which it announced on January 5, 2023, reversed course and held that the West Virginia law did not violate either the Equal Protection Clause or Title IX. On the Equal Protection issue, Judge Goodwin applied intermediate scrutiny to the West Virginia law and held that the athletic advantage that testosterone gives biological males is substantially related to the state’s significant interest in promoting fair women’s sports. Judge Goodwin also held that “Title IX used ‘sex’ in the biological sense because its purpose was to promote sex equality.” Therefore, West Virginia’s law did not violate Title IX. On February 7, 2023, Judge Goodwin denied a stay pending appeal, meaning that West Virginia could enforce the law against B.P.J. while the case awaited a hearing before the Fourth Circuit. The Fourth Circuit overturned the district court’s denial of a stay pending appeal on February 22, and the Supreme Court denied an application for review of that decision on April 6, leaving the Fourth Circuit’s ruling in place.
South Africa’s Alternative: The Section 36 Proportionality Test
The Rejection of Rigid Tiers
South African courts have rejected, mainly, rigid, tiered standards of review such as the strict or intermediate scrutiny often used in US constitutional law, in Favor of a context-specific proportionality analysis mandated by Section 36 of the Constitution. This approach, introduced in S v Makwanyane, focuses on balancing competing rights and interests, considering the specific circumstances of each case, rather than applying pre-determined, formulaic levels of scrutiny.
Factors of reasonableness
When determining if a limitation is reasonable and justifiable, a proportionality test is applied, which requires taking into account five specific, interrelated factors:
The Nature of the Right
This factor examines the importance of limiting the right within the context of a democratic society.: Rights such as human dignity, life, or freedom of expression have high significance. The more fundamental the right, the more compelling the justification for its limitation must be. A restriction on a foundational, “core” right (like the right to vote or freedom from torture) is harder to justify than a restriction on a more marginal right.
The Importance of the Purpose of the Limitation
This factor analyzes the goal that the government aims to achieve by restricting the right. The purpose must be legitimate; it must serve a pressing social need or a democratic value (e.g., public safety, national security, or protecting the rights of others). The purpose’s importance must outweigh the impact on the right. For example, limiting freedom of movement (a right) to stop the spread of a deadly virus (a purpose) is likely to be considered necessary.
The Nature and Extent of the Limitation
This factor considers how deeply the limitation intrudes upon the right and how widespread the impact is. Is it a minor restriction or a complete prohibition? A total ban on a right is more severe than a regulation. Who is affected? Is the limitation limited to a specific group, or does it apply to everyone? The more severe the impairment, the more difficult it is to justify.
The Relation Between the Limitation and Its Purpose
This factor checks the rational connection between the limitation and the goal. The measure taken must be capable of achieving the intended purpose. Does the restriction actually help to achieve the goal? If a law aims to reduce crime but the restriction has no logical connection to crime prevention, it fails this factor.
Less Restrictive Means to Achieve the Purpose
This factor assesses whether the same goal could be achieved through alternative methods that are less damaging to the right. The government must prove that it has chosen the least restrictive method possible. If there is a way to achieve the goal that doesn’t limit the right at all, or limits it less, the current limitation is probably not justified.
The “reasonable and justifiable” standard
South Africa’s limitation clause (section 36(1)) permits rights limitations only in terms of law of general application to the extent that the restriction is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.Courts weigh factors such as the right’s nature, its limitations’ purpose and extent, their relation to that purpose, and less restrictive alternatives. This holistic, proportionality-based test demands a compelling justification tied to post-apartheid values, rejecting mere public-interest balancing.
Under the US equal protection doctrine, intermediate scrutiny (e.g., for gender classifications) requires laws to serve important government objectives and employ means substantially related to achieving them, as in Craig v. Boren (1976). It focuses on empirical fit and governmental purpose without mandating alignment with overarching societal values, such as dignity. This narrower inquiry tolerates broader deference to legislative judgments.
Substantive Equality: Section 9(2) vs Formal Equality
Transformative constitutionalism
Section 9(2) of the South African Constitution states that Equality includes the full and equal enjoyment of all rights and freedoms. To promote equality, legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination may be taken.
The U.S. Resistance to Affirmative Measures
The Court acknowledged that even after the Fourteenth Amendment’s ratification, governments perpetuated racial discrimination during the post-Civil War segregation era. In Brown v. Board of Education, 347 U.S. 483 (1954), the Court deemed these practices violative of equal protection. Thereafter, race-based classifications trigger strict scrutiny: the government’s interest must be compelling, and the means narrowly tailored. Such measures rarely survive, though narrow exceptions exist, such as remedying specific, identified past constitutional or statutory violations or averting imminent prison safety risks. The majority then applied this to university admissions, revisiting the splintered Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
Constitutional Equality Framework
Whether non-recognition of a third gender discriminates against transgender persons falls under the section 9 analysis. This chapter elucidates equality in accordance with the Constitutional Court’s jurisprudence, distinguishing between differentiation, discrimination, and unfair discrimination using established tests. Section 9(4) deems sex, gender, and sexual orientation discrimination automatically unfair; analogous grounds are explored. Non-recognition’s potential as unequal, unfair discrimination is assessed through constitutional theory.
CONCLUSION
US strict scrutiny kills laws like West Virginia’s “Save Women’s Sports Act” if they exclude trans girls without perfect proof. South Africa’s section 36 test is more chill; it weighs dignity, history, and fairness holistically under the rubric of transformative equality. Unlike US post-SFFA skepticism, it supports gender fixes, making trans inclusion easier.
BIBLIOGRAPHY
CASE
B.P.J. v. West Virginia State Board of Education (No. 23-1078, April 16, 2024) United States of America
THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA
Section 9(2) of the constitution
Section 36(1) of the constitution
LEGAL ARTICLES
Aliaa Abdelrahman.AFFIRMATIVE ACTION IN THE UNITED STATES AND SOUTH AFRICA: WHY SOUTH AFRICA SHOULD NOT FOLLOW IN OUR FOOTSTEPS
Challenging Laws: 3 Levels of Scrutiny Explained
Legal Sidebar, Regulating Gender in School Sports: An Overview of Legal Challenges to State Laws
Richard Stacey Proportionality Analysis by the South African Constitutional Court
PB, M, Admin Limitation of Rights and COVID-19
Martin van Staden: Weasel clause or protector of freedom? A new consideration of section 36 of the Constitution
IM Rautenbach Proportionality and the limitation clauses of the South African Bill of Rights
Eric Kibet & Charles Fombad: Transformative constitutionalism and the adjudication of constitutional rights in Africa
Fareed Moosa: Understanding the “Spirit, Purport and Objects” of South Africa’s Bill of Rights
Stephen Gardbaum, LIMITING CONSTITUTIONAL RIGHTS
U.S Supreme Court Ends Affirmative Action in Higher Education: An Overview and Practical Next Steps For Employers
Rachel Sloth-Neilsen A Third Gender in South Africa: Does the legal non-recognition of a third gender violate non-binary transgender persons’ constitutional rights to dignity and equality?
