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Abstract

The U.S. Supreme Court’s Johnson v. California decision creates a new legal context for gender equal protection claims in the prison context. Johnson’s language and justifications create a space in prison jurisprudence where the deferential norms of Turner v. Safley are inapposite, and where deference rationales have no place. This Comment argues that this change is significant, and that it fundamentally alters several deference-specific doctrines that have emerged in gender equal protection claims by prison inmates. Specifically, this Comment argues that Johnson requires the removal of all prison deference rationales from protected-class equal protection claims, and that its careful set-aside includes gender claims. The requirement that plaintiffs show intentional discrimination for facially neutral policies will likely remain unchanged, given its presence outside the prison context and longstanding presence in equal protection law. Nevertheless, Johnson’s ultimate impact is a change in the standard of review for gender claims, the end of the Klinger v. Department of Corrections similar-situation standard, and the abandonment of the parity standard in favor of an equality standard.

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