In the mid-1990s, one of the most elite public colleges in the country didn’t admit women.
The Virginia Military Institute (VMI) was a prestigious, state-funded school that prided itself on rigorous military-style education, discipline, and tradition. Its students—known as cadets—endured grueling physical training and a strict code of honor. And for over 150 years, all of them had been men.
When a woman applied, the state didn’t let her in. Instead, Virginia created a separate program for women at a private liberal arts school nearby. It offered leadership training, but none of the rigor, resources, or reputation that VMI had.
The question before the Court in United States v. Virginia (1996) was this:
Can a public institution offer men one kind of education and send women somewhere else entirely—and call it “equal”?
Justice Ruth Bader Ginsburg, writing for the majority, said no.
But she didn’t just say it.
She redefined how the Court would talk about sex equality going forward.
The Standard: Sharpened and Elevated
Technically, the Court still used intermediate scrutiny, the same standard from Craig v. Boren. But Ginsburg gave it teeth.
She declared that:
“Parties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action.”
That’s not just rhetorical flair. It’s a signal.
Ginsburg insisted that states must offer real reasons, not outdated assumptions, for excluding people based on sex. The idea that women might not want the VMI experience—or that it was too tough for them—wasn’t persuasive. Even if most women weren’t interested, that didn’t justify excluding all women. The Constitution protects individuals, not averages.
The alternative program—VWIL—was a pale substitute. It lacked VMI’s resources, its alumni network, its status. Ginsburg made clear: separate is not equal, especially when the separation is built on generalizations about what women are like, or what they’re supposedly not suited for.
Why This Case Was Different
Unlike earlier gender cases, VMI wasn’t about a quirky beer law or nursing school admissions. It was about institutional legitimacy: who gets access to the full benefits of citizenship, education, and leadership.
Ginsburg reframed the issue:
This wasn’t about whether women belonged in a military academy. It was about whether the state could close the door before they even tried.
She wrote:
“Generalizations about ‘the way women are’ ... no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”
That line captures the heart of her vision: Equality means letting people define themselves, not be defined by cultural defaults.
Reactions from the Court
Chief Justice Rehnquist agreed with the result but tried to keep things grounded. He said the real issue was that VWIL just wasn’t equal to VMI—no need to amplify the scrutiny test. He treated Ginsburg’s “exceedingly persuasive” language as just another way of describing intermediate scrutiny.
Justice Scalia, alone in dissent, saw the decision differently. He accused the majority of rewriting the Constitution. To him, nothing in the Constitution prohibited single-sex education. He warned that the ruling threatened tradition and would undermine legitimate differences between the sexes.
“This is not the interpretation of a Constitution, but the creation of one.”
Scalia’s dissent is memorable—and revealing. He viewed the Court’s ruling as an ideological move, not a legal one. Ginsburg, by contrast, saw it as the inevitable result of constitutional principles catching up with reality.
Why It Mattered
Virginia is the high-water mark of the Court’s gender equality jurisprudence. It didn’t quite adopt strict scrutiny, the standard used for race. But it moved intermediate scrutiny into a new phase, a type of “intermediate-plus.”
Ginsburg’s opinion forced governments to do more than gesture at tradition or point to averages. They had to prove, with evidence, that sex-based policies were actually necessary and not just convenient.
And they couldn’t rely on “separate but equal” logic anymore. The Constitution demands more than equal access in theory. It requires equal opportunity in practice.
Why It Still Resonates
This case wasn’t just about VMI. It was about opening doors that had been closed for generations: military careers, leadership pipelines, elite education.
Today, as debates rage over gender roles, trans inclusion, and single-sex spaces, the principles from VMI still matter. Ginsburg didn’t argue that everyone is the same. She argued that people shouldn’t be locked out based on who others assume they are.
That’s equality not just as a legal doctrine but as a design for a fairer society.
Was the Court still applying intermediate scrutiny in VMI, or did Ginsburg quietly raise the bar?