Equal protection: why the HPV vaccine should be mandated for both boys and girls.

Human papillomavirus (HPV) is the most common sexually transmitted disease in the United States. (1) If left untreated, it can cause cervical, penile, anal, mouth, and throat cancers, as well as genital warts. (2) The new HPV vaccines eliminate two of the most common strains of the virus, which are known to cause 70% of cervical cancers. (3) Cervical cancer is unique to women and the second most lethal form of cancer among women worldwide. (4) The disease disproportionately affects those in poverty (5) and results in higher rates of cancer in Black and Hispanic women. (6) Given the rates of cervical cancer and the effectiveness of the vaccine, some states now require female students in public schools to receive vaccination for HPV by the sixth grade. While public schools have long played a role in public health initiatives by requiting students to receive vaccination at a number of different junctures before permitting them to enroll in classes, (7) the introduction of the HPV vaccine has brought new controversy to the debate surrounding mandatory vaccination. (8) Many parents and commentators fear that the requirement implicitly condones sex before marriage or sex with multiple partners. (9)

Those concerns have placed the vaccine under increased scrutiny in light of the 2012 Republican presidential primary contests. Texas Governor Rick Perry signed one of the first laws requiring mandatory vaccination of girls. (10) During the CNN-Tea Party Republican presidential debate on September 13, 2011, that mandate came under fire when candidate Michele Bachmann erroneously claimed that the vaccine was "dangerous." (11) She then suggested that the vaccine causes "mental retardation." (12) Medical experts from the American Academy of Pediatrics immediately rebuffed her statements, but physicians fear that the damage is done, and vaccination rates will drop. (13)

Generally left out of the debate is the fact that men transmit the vast majority of HPV infections both to women and other men, (14) yet states require vaccination only for girls. Indeed, studies report "more than half of American men will get HPV infections at some point in their lives." (15) Additionally, 30% of the cancers caused by HPV affect men, including penile and anal cancers. (16) By requiring vaccination of girls only, states are both inefficiently curtailing transmission to women and inadequately protecting men from the effects of the virus.

Beyond harming individual women and men, a sex-specific vaccination mandate raises an important equal protection concern. Legal scholars have considered the constitutionality of the HPV vaccine in varied contexts, including whether it is constitutional to require immigrants to receive vaccination prior to entering the country and whether it is constitutional to use the school context to mandate a vaccine that eliminates a sexually transmitted infection. A few scholars have also considered whether a sex-specific HPV vaccination requirement violates the privacy and liberty interests of girls and their parents. This Note, in contrast, considers whether gendered mandates can withstand constitutional scrutiny under equal protection analysis and in the process examines the legal and public health implications of mandating HPV vaccination for women only.

States violate the equal protection guarantee when they fail to include boys in HPV vaccination mandates. A girls-only requirement is based on false, gendered, heteronormative stereotypes and assumptions, which presume that women alone are responsible for limiting or eradicating HPV transmission and contraction. States are taking the wrong approach to eliminating HPV and its adverse effects on society because they have chosen an under-inclusive method to eliminate HPV. By requiting the vaccine for girls alone, states will not achieve their public health goal of eliminating the virus that causes cervical cancer and will continue to perpetuate inequality through sex stereotypes. To address HPV in a more closely tailored manner, states should confront the virus from all available angles, including mandating it for boys.

Part I examines HPV and its vaccine, existing and proposed mandates, and the legal frameworks for assessing HPV vaccine mandates. Part II applies the framework of equal protection jurisprudence to examine whether gendered vaccination mandates withstand intermediate scrutiny. Part II also examines the public health impact of gendered mandates as compared to proposed gender-neutral mandates. Finally, Part III proposes suggestions for implementing gender-neutral mandates, methods for remedying the sex discrimination inherent in the existing mandates, and ideas for addressing inequality more broadly through the HPV vaccine.

I. BACKGROUND & HISTORY OF THE VACCINE MANDATES

A. Human Papillomavirus and Gardasil

Human Papillomavirus (HPV) is the most common sexually transmitted infection in the United States. (17) HPV is transmitted through skin contact. (18) At least half of sexually active men and women will contract HPV during the course of their lifetimes. (19) The virus can cause cervical and vaginal cancer in women, (20) mouth and throat cancers and genital warts in men and women, (21) and penile and anal cancers in men. (22) A study covering over 80% of the United States population estimated that 24,900 instances of HPV-related cancer occur each year; while 70% of HPV-related cancers occur in women, the remaining 30% occur in men. (23) Researchers claim that the cancers associated with HPV cost $3.7 billion in 2003 alone, based on the number of lives lost from the cancers associated with the virus and their years of potential life lost, as well as the overall loss of productivity due to the virus and the cancers associated with it. (24)

HPV disproportionately affects individuals based on race, geography, and class. Black and Hispanic women face an increase in cervical cancer mortality, and they tend to receive less aggressive treatment for cervical cancer as compared to white women, (25) following general patterns of uneven distribution of health care services in the United States. (26) Cervical cancers caused by HPV are more prevalent in generally Southern areas, including the District of Columbia, Florida, Kentucky, Louisiana, West Virginia, Arkansas, and Texas, in addition to Illinois. (27) Researchers have found that lower median income is correlative of lower levels of vaccination. (28)

Currently, two vaccines target various strains of HPV. Merck Pharmaceuticals developed Gardasil, and in 2006, the Food and Drug Administration (FDA) licensed its use for women ages nine to twenty-six to prevent four strains of HPV, two of which cause 70% of cervical cancers and the other of which cause genital warts. (29) In May 2010, FDA extended its approval for Gardasil to men ages nine to twenty-nine, (30) but only for the treatment of genital warts (31) and anal cancer. (32) FDA also approved GlaxoSmithKline's Cervarix for use by women in the same age group. (33) Cervarix targets the same strains of HPV that cause 70% of cervical cancers, but it does not target the strains that cause genital warts. (34)

The Centers for Disease Control & Prevention (CDC) has recommended, through its Advisory Committee for Immunization Practices (ACIP), that states should mandate vaccination for "females 11-12 years" with "catch-up ... vaccination recommended for females ages 13-26 who have not previously been vaccinated." (35) As of October 2011, ACIP has also recommended that boys ages eleven and twelve be vaccinated against HPV. (36) Vaccination is predicted to be a highly cost-effective intervention. (37) Researchers have found a correlation between increased vaccination coverage and decreased cervical cancer mortality. (38)

Researchers have also found that the HPV vaccine is effective in men to prevent the contraction of the virus by both men and women. (39) The Lancet, a British medical journal, recommends that the HPV vaccine be mandated for both sexes, based on "[m]odelling studies [that] have shown that a female-specific approach would be only 60-75% as effective at reducing HPV prevalence in women as strategies that target both sexes." (40) Physicians have also argued that "[n]ot only can vaccination of boys and men bolster and expedite health benefits in girls and women (i.e., by contributing to reduced HPV prevalence among men and therefore reduced transmission to their sexual partners), but there is now clear evidence that boys and men themselves can benefit directly." (41)

B. States That Have Mandated Girls' Vaccination for School Enrollment

States rely heavily on the recommendations of ACIP to inform whether they will mandate certain vaccines. (42) As early as 2007, ACIP advised routine HPV vaccination for females aged eleven or twelve years and recommended vaccination for females thirteen to twenty-six years of age. (43) In 2010, it updated those recommendations to include the second version of the vaccine, implying that either version of the vaccine could be used to prevent cervical cancer. (44)

Almost immediately after ACIP released its recommendations, legislators and state policymakers began to propose legislation to increase education about and funding for the HPV vaccine, as well as to mandate it as a condition for girls' school entrance. (45) None of the states that have passed statutes have yet officially considered vaccination for boys. Descriptions of state governmental action regarding mandated HPV vaccination follow.

1. Virginia

Virginia was the first state to enact a statute requiring girls to be vaccinated against HPV before entering the sixth grade. (46) The statute includes provisions permitting parents to opt out of the regime, (47) which legislators believed would ensure more compliance and less resistance. (48)

2. Texas

Texas's mandate originated from an executive order in early 2007. (49) In the order, the governor, Rick Perry, provided extensive findings noting death rates from HPV-caused cancers both nationally and in Texas, and the efficacy of the vaccine in preventing HPV. (50) Like the Virginia law, the governor's mandate applied to girls entering the sixth grade in public schools and included provisions ensuring access to the vaccine, provided funds to increase public awareness about the vaccine, and permitted parents to object. (51) The executive order was subsequently overruled by the legislature, which revoked the mandate but retained funds for providing educational materials about vaccination. (52) In 2009, the Texas legislature considered a bill that would have permitted an agency head to mandate HPV immunization, but the bill did not pass. (53)

3. Washington D.C.

In the District of Columbia, the legislature passed a bill mandating the vaccination of girls before sixth-grade school enrollment. (54) The bill includes opt-out provisions for parents, with available objections ranging from religious to medical to a general lack of desire. (55)

4. New York 

Legislation is currently pending in New York to require routine immunization against HPV as a condition of school attendance for all students born after January 1, 1996. (56) The New York legislation is unique because it speaks in gender-neutral terms, and does not leave room for parents to opt-out of vaccination. (57) As of publication, the legislature has not made explicit findings to explain why the proposed statute is gender-neutral.

Between 2006 and 2010, twenty-one additional states considered legislation to mandate the HPV vaccine as a condition of girls' public school attendance. (58) As of December 2011, four states, including New York, have legislation pending regarding the HPV vaccine. (59)

C. Existing Legal Frameworks

1. Prior Scholarship

a. Constitutionality of the HPV Vaccine, Generally

Scholarship to date has considered the constitutionality of the vaccine as a matter of general vaccination policy, highlighting arguments that scientists have not sufficiently studied its effects. (60) Scholars such as Sylvia Law have assessed the validity of HPV vaccine mandates as "ethical, political, medical, and constitutional issues," and have concluded that they should be adopted. (61) Law elected not to engage in a constitutional analysis of the gender-based nature of the mandates. She did assert, however, on public health grounds that states should mandate that boys, as well as girls, receive the vaccine to achieve a high level of immunity to HPV in the overall population. (62)

b. Immigration Context

Some scholarship has considered the constitutionality of the now-retracted Citizenship and Immigration Services regulation (63) that mandated the HPV vaccine for female immigrants as a condition of entry into the United States. (64) The analyses largely concluded that such requirements were unconstitutional, against international law, and generally ill-advised because the vaccine is untested and is not mandated equally for citizens and non-citizens alike. (65) Because the FDA had not yet approved a HPV vaccine for men at the time this regulation was promulgated, (66) mandates for male immigrants are largely not discussed in this scholarship. (67)

c. Constitutionality of Mandating Vaccine for Men

A few law students have discussed the constitutionality of a potential HPV vaccine mandate for men. One student uses an economic analysis to assert that any HPV vaccine mandate for men would be unconstitutional because, in the student's view, the costs outweigh the benefits. (68) This analysis is limited in large part because it relies significantly on statistics that underestimate both the health effects of HPV in men and the extent to which vaccinating men would diminish the incidence of HPV in women. (69) Another student briefly examines the constitutionality of the sex-specific vaccine mandate in Virginia, concluding that the discriminatory means employed fails to meet the intermediate scrutiny burden because, in the student's view, public health rationales will always be inadequate to meet that burden. (70) Few other scholars have touched on this topic at length. (71)

2. Equal Protection Sex Discrimination Doctrine

The constitutionality of sex-specific HPV mandates must meet equal protection standards developed by the Supreme Court. Beginning in the 1970s, the Supreme Court began recognizing sex discrimination claims under the Equal Protection Clause of the Fourteenth Amendment. (72) The Court developed an intermediate scrutiny standard to assess whether states could maintain sex-based classifications. (73) That standard, articulated in Craig v. Boren, required that "classifications by gender ... serve important governmental objectives and ... be substantially related to achievement of those objectives." (74) In United States v. Virginia (VMI), the Virginia Military Institute's policy of sex-discriminatory admissions practices was challenged under Craig; the Court found that to uphold a sex-based classification, the government, in addition to meeting the intermediate scrutiny standard, needed to "establish an 'exceedingly persuasive justification' for the classification." (75) Pursuant to this case law, the judiciary must balance important governmental interests in regulating society against the constitutional interest of preserving individual rights. The contours of such balancing are uncertain; the intermediate scrutiny standard can fall anywhere between fatal-in-fact strict scrutiny (76) and any-rational-reason rational basis review. (77)

Several rationales govern the analysis of sex-based classifications. The Supreme Court is generally willing to uphold statutes that rely on sex-based classifications when the Court sees "real differences" between men and women. (78) These differences tend to involve pregnancy and parentage because of reproductive biology. (79) Some scholars argue against that principle, asserting that real differences do not truly exist, (80) or are fictive means of maintaining hierarchy. (81) At the same time, the Court is unwilling to rely on sex stereotypes to justify sex-based classifications. (82) Scholars have invoked such anti- stereotyping arguments even in the face of reproductive differences, for example by showing how pregnancy stereotyping more generally reinforces gender norms. (83)

Finally, in assessing the constitutionality of sex-based classifications under the Equal Protection Clause, the Court has expressed disapproval of classifications in general, considering any legislative classifications inherently suspect. (84) This anti-classification approach has been described as encompassing the view that it is "inappropriate [for the state] to treat individuals differently on the basis of a particular normative view about race or sex." (85) Scholars have suggested, however, that an anti-subordination approach that focuses on remedying structural inequality, rather than eliminating classifications, might better address more subtle disparities based on sex or race. (86) Anti-subordination arguments focus on substantive rather than formal equality, finding it "inappropriate for certain groups in society to have subordinated status because of their lack of power in society as a whole." (87) The two approaches to inequality were articulated by scholars in an attempt to better understand how courts came to conceptualize equality in an anti-classification manner, (88) and how courts could better address state-supported inequalities by embracing the goal of anti-subordination. (89) These frameworks are discussed in greater depth in Part II below.

II. CONSTITUTIONAL SCRUTINY OF THE VACCINE MANDATES

HPV vaccine mandates that apply to one sex only fail the equal protection guarantee. Laws involving classifications on the basis of sex must meet the intermediate scrutiny standard. (90) HPV vaccine mandates differentiate between the category of individuals required to receive the vaccine, women, and the category of individuals under no such mandate, men. (91) To survive intermediate scrutiny, the classification at issue here--mandating the vaccine for girls but not for boys--must serve an important governmental interest, be substantially related to achievement of that goal, and be supported by an exceedingly persuasive justification. (92)

The strongest "important governmental interest" of a girls-only HPV vaccine is a health- or welfare-based interest--ensuring that cancers caused by HPV are curtailed through prophylactic vaccination. (93) To meet that interest, states have chosen to mandate vaccination for the population most at risk for getting cancer from HPV: girls and women. (94) Whether that choice is substantially related to the achievement of the goal, or the state has provided an exceedingly persuasive justification for the choice to classify on the basis of sex, is debatable based on current case law and available public health information. When examined in the context of the available rationales and theories for intermediate scrutiny, however, a girls-only vaccine mandate cannot survive review.

The application of intermediate scrutiny does not necessarily predict a result either way. In the modern sex-based classification cases, the Court has overturned roughly the same number of sex-specific provisions as it has upheld. (95) A few major principles drive these results: (1) the Supreme Court tends to justify sex-based classifications related to biological or "real differences" between men and women, (2) in contrast, the Court is increasingly unwilling to rely on sex stereotypes to uphold sex classifications, (3) indeed, the current Court seems to disfavor most classifications, believing they are unjustified because they are rooted in stereotypes, and (4) scholars increasingly call on the Court to take an anti-subordination approach as opposed to an anti-classification approach. (96)

A. "Real Differences"

In cases concerning pregnancy and parentage, the Supreme Court has held that "real differences" between men and women justify differential classification and treatment of the sexes in state and federal law. (97) The biology of pregnancy, in which only individuals with uteruses--women--give birth, seems to be the type of "difference" that the Court is willing to permit as an acceptable use of classification. (98)

Scholars, however, have argued against the conceptualization and use of real differences to justify sex-based classification. They question both the types of differences that fall within the category of "real differences" and the fundamental notion of differences themselves, disputing the foundations of the normative prescriptions that the Supreme Court has made in distinguishing biological differences from other classifications. Cass Sunstein has suggested that many "real differences" are merely byproducts of structural inequality, and as such, should not be proffered as justification for differential treatment. (99) Zillah Eisenstein builds on this conceptualization, asserting that for a female body, "being 'different' is the same as being unequal." (100) Martha Minow describes the danger of differentiation as follows: "[A] difference assigned by someone with power over a more vulnerable person will become endowed with an apparent reality, despite powerful competing views." (101) These scholars' arguments undermine the rigid nature of "real differences" and open space for dialogue about which "differences" warrant different treatment.

The concept of "real differences" can be used to support or thwart sex-based classifications in HPV vaccine mandates. On one hand, one could claim that the HPV vaccine mandates are analogous to the "real differences" inherent in pregnancy because only women can contract cervical cancer. Legislators and others focus on cervical cancer as the perceived sole consequence of HPV. (102) Since cervical cancer is the type of cancer that is most commonly caused by HPV, (103) the use of biological difference--only women have cervixes--can be a permissible sex-based classification analogous to the biological difference of pregnancy. As such, laws using such classifications may be upheld on these grounds.

On the other hand, relying on "real differences" leads to a highly under-inclusive result. The biological difference of having a cervix is neither predictive of all of the adverse effects of HPV, nor of the benefits of the HPV vaccine. Men can develop a number of cancers from HPV; (104) they also transmit the virus to other men and to women. (105) HPV adversely affects both men and women because they are both at risk of transmitting the virus and developing cancer from it, so mandating the vaccine in a sex-discriminatory fashion is unwarranted. Studies show that as currently conceived, gender-discriminatory HPV vaccine mandates are less effective at protecting women against HPV-induced cervical cancers than if the vaccine were made mandatory for all individuals. (106) In addition, women-only mandates completely leave out the risks posed to men who have sex with men.

Therefore, if the goal of state legislatures is to eradicate the cancers caused by HPV, then the most effective means possible is a gender-neutral mandate. Sunstein's assessment regarding inequality, that "real differences" are byproducts of structural inequality, (107) is reflected in the perceived "real difference" of having a cervix as a justification for differential treatment. In drawing distinctions between men and women, especially in the context of biology, men have traditionally used sex stereotypes about gender roles to retain their superior status, regardless of whether it is warranted or not. Here, having a penis is correlative of sexual agency and pleasure, while having a cervix requires protection and paternalistic measures such as vaccination. (108) The differentiation is also unwarranted and particularly dangerous because it disparately impacts the poor and those with restricted access to the HPV vaccine, since school-based vaccine mandates have been found to ensure greater immunization in the population more broadly. (109) This is problematic, even if the Constitution does not protect class-based disparate impacts. Even under existing approaches to "real differences" then, vaccine mandates should be extended to young men if they have already been imposed on young women.

B. Sex Stereotypes

Unlike "real differences," sex stereotypes have been identified as impermissible bases for making sex-based classifications to further government ends. (110) The Supreme Court has established that it will not use outmoded sex stereotypes as a justification for upholding sex-based classifications, (111) and commentators agree that the Court has taken an anti-stereotyping approach to cases involving equal protection challenges of sex classifications. (112) Moreover, in Nevada Department of Human Resources v. Hibbs, the Court upheld the Family & Medical Leave Act because it was enacted to counter impermissible stereotyping, finding the anti-stereotyping rationale to be a valid basis for justifying the legislation. (113)

Sex stereotyping is particularly threatening because it relies on societal assumptions not grounded in fact. (114) In addition, sex stereotypes do not stand in isolation of racialized, class-formulated assumptions but instead are interwoven within them. (115) Scholars such as Cary Franklin argue that the principle of anti-stereotyping applies regardless of "whether ... 'real' differences are involved." (116) Franklin identifies the origins of the principle in the "real differences," cases themselves, which classified some differences as real in an attempt to distinguish them from differences rooted in stereotypes. Over time, however, the Court began using anti-stereotyping principles to limit the scope of exceptions created by "real differences." (117)

Gendered HPV vaccine mandates rest on stereotypes concerning the appropriate sexual roles of men and women. These stereotypes are similar to the protectionist stereotypes attaching to pregnancy. States' historical treatment of pregnancy was a bastion of sex-role stereotyping. (118) Differential treatment because of pregnancy was justified by the notion of separate spheres, (119) in which women warranted "protection" because they were expected to perform the role of economically dependent caretakers. (120) Such pregnancy-related stereotyping remained permissible until Congress passed the Pregnancy Discrimination Act of 1978 (PDA). (121)

Recently, scholars have claimed that the Supreme Court has challenged such stereotyping. These scholars view Hibbs, (122) Planned Parenthood of Southeastern Pennsylvania v. Casey, (123) and Justice Ginsburg's dissent in Gonzales v. Carhart (124) as affirmation of how "even though the Court initially had difficulty seeing that sex role stereotypes were sometimes implicated in cases concerning the regulation of pregnancy, the Court's constitutional decisions have increasingly come to recognize the relationship between pregnancy discrimination and sex discrimination." (125)

It is not surprising that similar stereotypes may arise in the context of gendered HPV vaccines. Just as pregnancy affects only women's bodies, HPV is assumed by these mandates to have a much larger impact on women than on men. (126) Similarly, pregnancy is generally caused by contact with male genitalia, (127) and HPV is largely transmitted through such contact. (128) Finally, both pregnancy and HPV have been targeted as "real differences" warranting classification and differential treatment. (129) These similarities in turn inspire similar stereotypes, namely that girls need more protection from HPV than boys because of the risk of cervical cancer and that girls alone should be responsible for such protection. Gendered HPV mandates rest on these stereotypes. Like past laws assuming that women should be solely responsible for pregnancy despite men's role in pregnancy, gendered HPV mandates assume that women alone are responsible for contracting communicable sexually transmitted infections, (130) blatantly ignoring the primary means of transmission of HPV to women, namely genital contact with men. (131)

Just as pregnancy stereotyping has come to be viewed as impermissible sex discrimination, so should these stereotypes. Both stereotypes are equally impermissible because they are based on outmoded perceptions of the roles of women in society. By only requiring female vaccination, girls and women are likewise held responsible for preventing contraction of HPV, regardless of the fact that they most likely will contract it from boys and men. While gendered vaccination mandates are not subject to explicit anti-discrimination legislation like the PDA, the law can draw analogues between pregnancy and HPV vaccination to require gender-neutral mandates instead of reinvigorating stereotypes that the Supreme Court has attempted to dismantle.

Moreover, by tying public school attendance to HPV vaccination, the mandates necessarily mean that states are communicating through the policies surrounding the vaccine. The presence of a vaccine mandate for girls and not boys signals to students that women are responsible for contracting HPV, while men bear no responsibility for contracting or transmitting it. By not mandating vaccination for boys, schools are reinforcing the stereotype that the sex acts of men have fewer consequences and are less normatively proscribed than those of women. (132) The implication is that boys need not be vaccinated because they neither experience any effects from contracting HPV nor perform any role in transmitting it. When such stereotyping is inculcated through the school system, it becomes coterminous with students' education more generally--learning "proper sex roles" is given the same normative valence as mastering algebra. (133) Legislators should be exceedingly cautious when relying upon such stereotypes to justify their educationally-based sex-discriminatory vaccine policies because youth rarely have the opportunity to challenge such policies. (134)

Such stereotypes are particularly troubling because they apply without regard to race or class, which are both correlative of differential impact of HPV. (135) Empirical research shows that Black and Hispanic women, as well as women in poverty, tend to be affected by HPV at greater rates than those not in these categories. (136) Yet the stereotypes assume that all women are affected by HPV in the exact same way. As a result, the populations that most need vaccination and have limited access to treatment for cancers related to HPV (137) are, based on outmoded perceptions of proper sex roles, having their access to prophylactic vaccination limited. While the limited access could be attributed to implicit racial bias, (138) it is more likely that low socio-economic status is the primary limitation for these populations. The limitations are merely compounded by restricting mandatory vaccination to women.

Anti-essentialist scholars such as Angela P. Harris argue against such gender-essentialism, claiming that feminists "should challenge not only law's content but its tendency to privilege the abstract and unitary voice." (139) It is tempting to essentialize all women and then single out poor women and women of color as in need of "increased" protection. Yet, such women are not merely like all women but more so. Instead, transmission can vary according to race, class, and sexuality, among other factors. While increasing health care accessibility to particular groups might be helpful, it does not alone sufficiently curtail the risk of intra- or inter- group transmission of HPV. Indeed, viewing races, genders, sexual orientations, and other categorizations in isolation is problematic because these groups intermingle sexually and otherwise. Anti-essentialism would therefore call for HPV mandates to address the needs of all sexes, races, and classes to better protect individuals against the unique subordination that might be overlooked by measuring everyone in relation to one stereotyped and privileged norm.

C. Anti-Classification and Anti-Subordination Approaches

Traditionally, the "real differences" and anti-stereotyping approaches were means to distinguish permissible distinctions between the sexes from impermissible ones. Both were thus seen as embodying an anti-classification approach, in which sex-based classifications were generally discouraged absent appropriate justifications. Scholars began to address some of the limitations of this anti-classification approach by considering how subordination may linger even when state laws appear sex- or race-neutral. In time, many scholars came to believe that an anti-subordination approach was superior to an anti-classification approach because it better challenged the ways existing structures privileged certain groups to the exclusion of others, even in the absence of facially discriminatory laws.

In the context of HPV mandates, the two approaches dovetail neatly to point to the same result: extending vaccination mandates to both sexes. Indeed, although many scholars see the two approaches as divergent means of achieving equality, the HPV vaccine context provides an opportunity to examine some of the overlapping features of each theory of equality.

1. Two Theories of Equality

Anti-classification (140) opposes explicit differences in treatment on the basis of race or sex regardless of the reasons behind those differences. (141) In Parents Involved in Community Schools v. Seattle School District No. 1, (142) the Court refused to uphold a race-based classification to accomplish affirmative action in public school districting on the grounds that racial classifications are inherently suspect. The Court stated: "This Court has recently reiterated ... that 'all racial classifications [imposed by the state] ... must be analyzed by a reviewing court under strict scrutiny.'" (143) The Court found the provisions invalid, relying on Rice v. Cayetano, in which it declared: "'[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.'" (144) Commentators are quick to point to the inadequacies of anti-classification when it is used as a rationale for striking down laws like affirmative action that benefit protected classes. (145)

Anti-subordination, (146) in contrast, is defined by its goal of dismantling inequality through multiple means. (147) While the Court has not formally recognized the theory in the context of equal protection jurisprudence, scholars have developed the theory to articulate means that better address and remedy structural inequality. (148) In the context of sex discrimination, Robin West defines anti-subordination as determining "not whether the legislative classification 'fits' a pre-existing reality, but rather whether the classification furthers the subordination of women vis-a-vis men or attempts to end their subordination." (149) Under this theory, "Sex-based state action offends the Equal Protection Clause in those circumstances where it perpetuates the status inferiority of women." (150)

2. Reconciling the Theories in the Context of the HPV Vaccine

While most constitutional scholars argue that the Equal Protection Clause should be approached pursuant to either anti-classification or anti-subordination rationales, the choice between the two theories need not be irreconcilable. (151) Owen Fiss argues that different types of discrimination call for different, tailored balances of anti-classification and anti-subordination approaches. (152) Jack Balkin and Reva Siegel, responding to Fiss, claim that "the scope of the two principles overlap [and] their application shifts over time in response to social construction and social struggle." (153) Because anti-classification can be seen as a means of achieving anti-subordination goals in situations where the act of classifying is the cause of subordination, there exist ways to achieve structural equality even when the focus remains on the harms of classification to individuals.

Vaccination mandate classifications exist to achieve a governmental end, eliminating cervical cancer, by targeting a particular group, women. (154) Given the explicit sex-based classification, the Court is likely to be inherently suspicious of the means of achieving the government's interest under standard anti-classification rationales. Here, unlike in Parents Involved, the classification will be examined under intermediate scrutiny instead of strict scrutiny, but like in Parents Involved, the classification should not withstand scrutiny.

As discussed above, the general question in sex classification cases is whether the classification is grounded in real differences or stereotypes; if the former, it will be found invalid and, if the latter, the real differences will be examined to determine if they are in fact impermissible stereotypes. One way of rooting out such stereotypes is considering whether the classification at issue is in fact necessary to achieving the state's ends. In the case of gendered HPV mandates, (155) the stated purpose is to reduce the incidence of cervical cancer and HPV. This purpose presumes that the most effective way of diminishing the rate of cervical cancer is by vaccinating only women against HPV.

Such a presumption carries some of the same dangers that flow from race-based classifications. The Court has pointed to the damaging assumptions behind race-based classifications, (156) and those same concerns are inherent in gendered vaccination mandates. Here, the sex-discriminatory assumptions include that (1) HPV affects only women, (2) women alone are responsible for contracting HPV, and (3) the burden of the consequences of HPV should lie solely on women. Each of these assumptions is detrimental to women because they reinforce negative stereotypes regarding women's sexuality, contributing to and reinforcing their inferior status in society. (157) Therefore, under standard anti-classification approaches, existing HPV mandates should be rendered gender-neutral.

Moreover, in this context, unlike in Parents Involved, gender-neutrality does not freeze in place existing power dynamics. Anti-subordination approaches seek to ensure that women as a group do not continue to be subjugated through existing structures even if those structures are facially gender-blind. Here, gender-neutrality actually challenges underlying forms of gender discrimination by dismantling assumptions about the appropriate sexual roles of men and women. Challenging the gendered stereotypes attaching to sexuality does more than help nonconforming individuals. Instead, such a challenge also has the potential to alter the structure of sexual interactions.

In supporting gender-neutral mandates, therefore, anti-classification and anti-subordination approaches to equality are not at odds. Both the individual-focused anti-classification theory and the group-focused anti-subordination theory support a gender-neutral mandate. This integration of theories begs the question of what other types of gender classifications might similarly benefit from such an integrated analysis. (158)

III. NEXT STEPS: PROPOSALS

In light of the forgoing equal protection analysis, some proposals for addressing the issues raised by gendered HPV vaccine mandates may seem obvious. However, the analysis also can be applied more broadly to address gendered aspects of the sex education context, thereby combating sex discrimination on a more macroscopic level.

A. Mandate Gender-Neutral Vaccination

If HPV mandates directed solely at girls are challenged, it seems unlikely that they will withstand constitutional scrutiny for the reasons stated above. Given the constitutional landscape, states have two options: (1) make their mandates gender-neutral, or (2) eliminate mandates altogether. Because the latter would defeat public health goals, this proposal focuses on the former. (159) If public health efficacy is the primary concern of lawmakers and administrators, they should opt to create gender-neutral mandates. When state legislatures consider vaccination schedules for school entrance, they should rely on concrete scientific evidence and not on outmoded gender stereotypes as the basis for the laws that protect their constituents. (160) They should not focus merely on those who are perceived to be at increased risk, but ensure maximal coverage to target the virus from all possible angles. (161)

B. Increase Research Support

There is a shortfall of knowledge about the costs and benefits of the HPV vaccine for men. Although some studies have found that the vaccine is effective at preventing HPV-related cancers in men, (162) and it has been widely postulated that immunization against strains of HPV will curtail transmission of HPV, (163) it is essential to obtain additional research support and findings so that ACIP and other regulatory and policymaking bodies can make scientifically backed recommendations. Although both men and women are affected by HPV, they are not affected in the same ways. Thus it would be beneficial to have more empirical research to better explain how men might benefit from the vaccine.

C. Use Sex Education as a Vehicle for Addressing Sex Discrimination

Sex education provides a vehicle for addressing many of the broader issues that sex discriminatory HPV vaccine mandates raise. Making changes in sex education policies, such as removing normative prescriptions about the proper sexual roles of men and women, would meet anti-classification goals by distributing responsibility for sex to all parties, instead of differentially to men and women. (164) States can confront the problem from a systemic anti- subordination perspective by addressing sex classifications, and the broader policies in which they fit.

For example, as a policy matter, states can require that sex education rely on evidence-based empirical research in order to avoid normative prescriptions regarding sex roles. When states require curricula that focus on the science of sexually transmitted infections, sex education can be a means to address sex inequalities. This way, students will have better understandings of how different sexually transmitted infections are actually transmitted, (165) helping them to combat misguided assumptions about the role of men and women in managing sexual activity and its consequences. A provision providing for increasing information is especially important in light of the fact that those in a position lacking privilege are unlikely to be able to access the information on their own. (166) As mentioned, students lack the political power to alter their positions. (167) States must also more broadly address HPV within the context of other sexually transmitted infections, and educate students that even though vaccinated students may have immunity against HPV, they can still contract other sexually transmitted infections. (168)

CONCLUSION

This Note calls into question the constitutionality and efficacy of existing gender-discriminatory HPV vaccine mandates. This preliminary analysis reveals that the vaccination mandates are unconstitutional because they are rooted in outmoded stereotypes about the role of women in managing sexual activity and sexually transmitted infections. In addition, these stereotypes are dangerous because they impede the public health goal of eradicating HPV, reinforce gender role oppression, and maintain hierarchical healthcare disparities based on race and class. If lawmakers, public health officials, and scholars want to address HPV more comprehensively and effectively, they should look to anti-classification means to meet anti-subordination goals.

(1.) HPV-Associated Cancers Statistics, CTRS. FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/cancer/hpv/statistics/(last updated Aug. 23, 2011).

(2.) Id.

(3.) The strains are HPV16 and HPV18. See D. Maxwell Parkin & Freddie Bray, Chapter 2: The Burden of HPV-related Cancers, 24 VACCINE S11, S17 tbl.1 (Supp. III 2006) (finding that 344,900 of 429,800 instances of cervical cancers are attributable to HPV16 and HPV18).

(4.) See Douglas R. Lowy & John T. Schiller, Prophylactic Human Papillomavirus Vaccines, 116 J. CLINICAL INVESTIGATION 1167, 1167 (2006). Cervical cancer is unique to women because only women have cervixes, and thus only women can be affected by it. The HPV vaccine is unique because it is only the second vaccine able to eradicate viruses that cause cancer. The first cancer prevention vaccine was developed in 1981 and prevents hepatitis B, a virus that can lead to liver cancer. Nat'l Cancer Inst., Cancer Vaccines, U.S. NAT'L INST. HEALTH, http://www.cancer.gov/cancertopics/factsheet/Therapy/cancer-vaccines (last updated Nov. 15, 2011).

(5.) Vicki B. Benard et al., Examining the Association Between Socioeconomic Status and Potential Human Papillomavirus-associated Cancers, 113 CANCER 2910, 2913 tbl.1 (Supp. 2008).

(6.) Meg Watson et al., Burden of Cervical Cancer in the United States, 113 CANCER 2855, 2857 tbl.2 (Supp. X 2008).

(7.) See generally James G. Hodge, Jr. & Lawrence O. Gostin, School Vaccination Requirements: Historical, Social, and Legal Perspectives, 90 KY. L.J. 831 (2002). States force public schools to require vaccination for a variety of reasons, including reducing transmission of communicable diseases between students who are in close proximity for extended periods of time. This permits the state to ensure that compliance with public health preventive measures is high as the vast majority of children take part in public education. See, e.g., id. at 869-73 tbl.2, 879-82 (including table with vaccine mandates by state; summarizing studies showing that for the most part school vaccinations have reduced disease and met their public health aims); James C. King, Jr. et al., Effectiveness of School-Based Influenza Vaccination, 355 NEW ENG. J. MED. 2523 (2006) ("school-based vaccination intervention resulted in a reduction in influenza-related outcomes in household members of children attending intervention schools"); Ctrs. for Disease Control & Prevention, Measles and School Immunization Requirements--United States, 1978, 27 MORBIDITY & MORTALITY WKLY. REP. 303 (1978) (finding that states that strictly enforced vaccination laws had 50% lower incidence of measles than those that did not enforce vaccination laws strictly).

(8.) The debate ranges in perspectives from those who vehemently oppose vaccination to those that vigorously advocate for it. Vaccine advocates highlight the fact that the rate of fully vaccinated school-age children in the United States is as high or higher than that in most other developed countries, leading to significant decline of common childhood illnesses in the United States. Those who oppose vaccination do so for a variety of reasons, including: doubts about efficacy of the vaccines and their necessity, fears of adverse effects, and desire to retain autonomy for parents to make medical decisions for their children. See Hodge & Gostin, supra note 7, at 875-89.

(9.) Physicians such as Dr. Mary Anne Jackson have stated, "This vaccine has been portrayed as 'the sex vaccine'... Talking about sexuality for pediatricians and other providers is often difficult." Denise Grady, Remark on HPV Vaccine Could Ripple for Years, NY TIMES, Sept. 20, 2011, at D1; see also Meghan O'Rourke, Cancer Sluts: Does the HPV Vaccine "Promote" Promiscuity?, SLATE.COM (Sept. 27, 2007), http://www.slate.com/id/ 2174850/; Nancy Gibbs, Defusing the War Over the "Promiscuity" Vaccine, TIME, June 21, 2006, available at http://www.time.com/time/nation/article/0,8599,1206813,00.html.

(10.) See infra Part I.B.2.

(11.) CNN-Tea Party Republican Debate in Tampa, Fla., NY TIMES (Sept. 13, 2011), http://www.nytimes.com/2011/09/13/us/polities/cnn-tea-party-republican-debate- in-tampa-fla.html (providing transcript of debate); see also Grady, supra note 9.

(12.) See Scott Hensley, Pediatricians Fact-Check Bachmann's Bashing of HPV Vaccine, SHOTS: NPR's HEALTH BLOC (Sept. 13, 2011, 5:54 PM), http://www.npr.org/blogs/health/ 2011/09/13/140445104/pediatricians-fact-check-bachmanns-bashing-of-hpv- vaccine.

(13.) See Grady, supra note 9.

(14.) Ann N. Burchell et al., Chapter 6: Epidemiology and Transmission Dynamics of Genital HPV Infection, 24 VACCINE S52, S57-S58 (Supp. III 2006).

(15.) SHOBHA S. KRISHNAN, THE HPV VACCINE CONTROVERSY: SEX, CANCER, GOD, AND POLITICS: A GUIDE FOR PARENTS, WOMEN, MEN AND TEENAGERS 118 (2008).

(16.) HPV-Associated Cancer Statistics, supra note 1.

(17.) See generally Willard Cates, Jr., Estimates of the Incidence and Prevalence of Sexually Transmitted Diseases in the United States, 26 SEXUALLY TRANSMITTED DISEASES 82 (1999); Eileen F. Dunne et al., Prevalence of HPV Infection Among Females in the United States, 297 JAMA 813 (2007).

(18.) ADINA NACK, DAMAGED GOODS: WOMEN LIVING WITH INCURABLE SEXUALLY TRANSMITTED DISEASES 3 (2008). Because the virus is transmitted through skin contact, the use of latex condoms is only partially effective at preventing its transmission because genital contact can occur beyond the surface area covered by condoms. See KRISHNAN, supra note 15, at 119. But see id. at 120 (finding in a meta-analysis of studies that "condom use reduces HPV transmission by 70%").

(19.) The Nat'l Women's Health Info. Ctr., Human Papillomavirus (HPV) and Genital Warts, WOMENSHEALTH.GOV THE FED. GOV'T SOURCE FOR WOMEN'S HEALTH INFO., http://womenshealth.gov/faq/human-papillomavirus.cfm (last updated Jan. 1, 2009).

(20.) Studies have found that HPV strains cause 100% of cervical cancers and between 40-70% of vaginal cancers. See Parkin & Bray, supra note 3, at S17 tbl. 1 (providing statistics on percentage of cervical cancers caused by HPV); Hugo De Vuyst et al., Prevalence and Type Distribution of Human Papillomavirus in Carcinoma and Intraepithelial Neoplasia of the Vulva, Vagina and Anus: A Meta-analysis, 124 INT'L J. CANCER 1626, 1627 (2009) (providing statistics on percentage of vaginal cancers caused by HPV).

(21.) HPV-Associated Cancer Statistics, supra note 1 (providing statistics regarding mouth and throat cancer). CDC reports that 25% of mouth cancers and 35% of throat cancers are caused by HPV. Id. Other studies have found that two of the HPV strains targeted by Gardasil, HPV6 and HPV11, cause 90% of genital warts. See Hillard Weinstock et al., Sexually Transmitted Diseases Among American Youth: Incidence and Prevalence Estimates, 2000, 36 PERSP. ON SEXUAL & REPROD. HEALTH 6, 8 (2004); Should HPV Vaccines be Mandatory for All Adolescents?, 368 LANCET 1212, 1212 (2007) [hereinafter Mandatory HPV Vaccines].

(22.) Studies have found that HPV strains cause between 85-90% of anal cancers and around 40% of penile cancers. See Parkin & Bray, supra note 3, at S17 (providing findings for penile and anal cancers); De Vuyst et al., supra note 20, at 1627 (providing findings for anal cancer).

(23.) HPV-Associated Cancer Statistics, supra note 1.

(24.) See Donatus U. Ekwueme et al., Years of Potential Life Lost and Productivity Costs Because of Cancer Mortality and for Specific Cancer Sites Where Human Papillomavirus May Be a Risk Factor for Carcinogenesis--United States, 2003, 113 CANCER 2936, 2936 (2008).

(25.) Watson et al., supra note 6, at 2862.

(26.) Peter B. Bach, Gardasil: From Bench, to Bedside, to Blunder, 375 LANCET 963, 964 (2010).

(27.) Meg Watson et al., Using Population-based Cancer Registry Data to Assess the Burden of Human Papillomavirus-associated Cancers in the United States: Overview of Methods, 113 CANCER 2841 (Supp. 2008).

(28.) Id.

(29.) See Lauri E. Markowitz et al., Quadrivalent Human Papillomavirus Vaccine: Recommendations of the Advisory Committee on Immunization Practices (ACIP), 56 MORBIDITY & MORTALITY WKLY. RPTS. 1, 1 (2007), available at http://www.cdc.gov/mmwr/ preview/mmwrhtml/rr5602a1.htm.

(30.) See FDA Approves New Indication for Gardasil to Prevent Genital Warts in Men and Boys, U.S. FOOD & DRUG ADMINISTRATION (Oct. 16, 2009), http://www.fda.gov/NewsEvents/ Newsroom/PressAnnouncements/ucm187003.htm; Ctrs. for Disease Control & Prevention, FDA Licensure of Quadrivalent Human Papillomavirus Vaccine (HPV4, Gardasil) for Use in Males and Guidance from the Advisory Committee on Immunization Practices (ACIP), 59 MORBIDITY & MORTALITY WKLY. RPTS. 630 (2010) [hereinafter CDC Report on Men], available at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5920a5.htm?s_cid=mm5920 a5_e. Merck also conducted studies in boys to determine the vaccine's efficacy in establishing immunity in that population, and "found a high level of immunity in boys, similar to that found in girls." KRISHNAN, supra note 15, at 130.

(31.) See CDC Report on Men, supra note 30.

(32.) See Gardasil Approved to Prevent Anal Cancer, U.S. FOOD & DRUG ADMIN. (Dec. 22, 2010), http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm237941.htm.

(33.) See Ctrs. for Disease Control & Prevention, FDA Licensure of Bivalent Human Papillomavirus Vaccine (HPV2, Cervarix) for Use in Females and Updated HPV Vaccination Recommendations from the Advisory Committee on Immunization Practices (ACIP), 69 MORBIDITY & MORTALITY WKLY. REP. 626 (2010), available at http://www.cdc.gov/mmwr/ preview/mmwrhtml/mm5920a4.htm.

(34.) Id.

(35.) See Markowitz et al., supra note 29, at 1. The recommendations target women as young as the age of twelve because statistic modeling has shown that it is most cost-effective to vaccinate prior to exposure to the virus and prior to commencing sexual activity. See Jane J. Kim & Sue J. Goldie, Health and Economic Implications of HPV Vaccination in the United States, 359 NEW ENG. J. MED. 821, 821 (2008). According to news sources, the American Academy of Pediatrics, a children's health advocacy organization for physicians and pediatricians, has added the HPV vaccine to its recommended vaccines for boys. See Lynne Peeples, HPV Vaccine Effective in Men, CNN HEALTH (Feb. 3, 2011), http://www.cnn.com/ 2011/HEALTH/02/02/hpv.vaccine.men.health/index.html.

The ACIP is a group of fifteen vaccine experts selected by the Secretary of the U.S. Department of Health and Human Services to provide advice regarding vaccination for preventable diseases. The group provides advice about whether vaccines should be offered and mandated through written recommendations, and is the only federal entity to provide such advice. Nat'l Ctr. for Immunization & Respiratory Diseases, Advisory Committee on Immunization Practices (ACIP), CENTERS FOR DISEASE CONTROL VACCINES: RECOMMENDATIONS & GUIDELINES, http://www.cdc.gov/vaccines/recs/acip/default.htm#about (last updated Dec. 23,2011).

(36.) See Gardiner Harris, Panel Endorses HPV Vaccine for Boys of 11, NY TIMES, Oct. 26, 2011, at A1.

(37.) Gary Michael Ginsberg et al., Screening, Prevention & Treatment of Cervical Cancer--A Global and Regional Generalized Cost-Effectiveness Analysis, 27 VACCINE 6060, 6060 (2009). The authors find that in "regions of high income, low mortality and high existing treatment coverage" such as a developed nation like the United States, "vaccination is the most cost-effective intervention." Id.

(38.) Bach, supra note 26, at 963 fig. 1.

(39.) Anna R. Giuliano et al., Efficacy of Quadrivalent HPV Vaccine Against HPV Infection and Disease in Males, 364 NEW ENG. J. MED. 401, 409 (2011) ("Our findings point to the efficacy of the quadrivalent HPV vaccine in preventing HPV infection and related diseases in men.").

(40.) See Mandatory HPV Vaccines, supra note 21.

(41.) Jane J. Kim, Weighing the Benefits and Costs of HPV Vaccination of Young Men, 364 NEW ENG. J. MED. 393,394 (2011); see also Harris, supra note 36.

(42.) See supra note 35 for description of ACIP and its function.

(43.) Markowitz et al., supra note 29, at 1 and accompanying text.

(44.) See id.

(45.) HPV Vaccine, NAT'L CONFERENCE OF STATE LEGISLATURES, http://www.ncsl.org/ default.aspx?tabid=14381 (last updated Jan. 2012).

(46.) VA. CODE ANN. [section] 32.1-46 (2011). The statute provides, in relevant part:

A. The parent ... of each child within this Commonwealth shall cause such child to be immunized in accordance with the Immunization Schedule developed and published by the Centers for Disease Control and Prevention (CDC), Advisory Committee on Immunization Practices (ACIP), the American Academy of Pediatrics (AAP), and the American Academy of Family Physicians (AAFP).... The Board's regulations shall at a minimum require:

12. Three doses of properly spaced human papillomavirus (HPV) vaccine for females. The first dose shall be administered before the child enters the sixth grade.

Id.

(47.) See id.

(48.) Opt-out provisions add legitimacy to required provisions by ensuring flexibility in administration and ensuring that the provision does not seem oppressive or rigid. These provisions originally developed to provide those with religious objections the means to continue abiding by the law, while also partaking in public education. See generally Emily Buss, The Adolescent's Stake in the Allocation of Educational Control Between Parent and State, 67 U. CHI. L. REV. 1233 (2000) (arguing that if denied an opportunity to opt-out from educational policies that they do not agree with, parents may just remove their children from the system altogether). But cf. Sylvia Law, Human Papillomavirus Vaccination, Private Choice, and Public Health, 41 U.C. DAVIS L. REV. 1731, 1768-69 (2008) (noting that while the Constitution permits states to "mandate vaccinations without making allowance for religious or conscientious objections by parents," states are free to make such allowances at the risk of harming the level of vaccination).

(49.) R.P. Exec. Order No. 65 (Tex. Feb. 2, 2007), available at http://governor.state.tx .us/news/executive-order/3455/. Relevant portions of the executive order are reproduced below. The preamble of the executive order includes the following facts: "HPV is the most common sexually transmitted infection-causing cancer in females in the United States" and "the Texas Cancer Registry estimates there were 1,169 new cases and 391 deaths from cervical cancer in Texas in 2006." Id. Some relevant provisions from the statute include the mandate itself, and also the right for parents to object to vaccination:

Rules. The Health and Human Services Executive Commissioner shall adopt rules that mandate the age appropriate vaccination of all female children for HPV prior to admission to the sixth grade.

Parents' Rights. The Department of State Health Services will, in order to protect the right of parents to be the final authority on their children's health care, modify the current process in order to allow parents to submit a request for a conscientious objection affidavit form via the Interact while maintaining privacy safeguards under current law.

Id.

(50.) Id.

(51.) Id.

(52.) TEX. EDUC. CODE ANN. [section] 38.001 (Vernon 2007). The text of the HPV provision is as follows:

(b-1) Immunization against human papillomavirus is not required for a person's admission to any elementary or secondary school; however, by using existing resources, the Health and Human Services Commission shall provide educational material about the human papillomavirus vaccine.

Id.

(53.) H.B. 2220, 81st Sess. (Tex. 2009), available at http://www.legis.state.tx.us/tlodocs/ 81R/billtext/html/HB02220I.htm. The text of the proposed legislation, in relevant part, is as follows:

(b) [T]he executive commissioner of the Health and Human Services Commission ... may modify or delete any of the immunizations in Subsection (a) or may require immunizations against additional diseases as a requirement for admission to any elementary or secondary school.

Id.

(54.) D.C. CODE [section] 7-1651.04 (2010). The statute states in relevant part:

(b)(1) By the beginning of the 2009 school year, and of every school year thereafter, the parent or legal guardian of a female child enrolling in grade 6 for the first time at a school in the District of Columbia shall be required to submit certification:

(A) That the child has received the HPV vaccine; or

(B) That the child has not received the HPV vaccine because:

(i) The parent or legal guardian has objected in good faith and in writing to the chief official of the school that the vaccination would violate his or her religious beliefs;

(ii) The child's private physician, his or her representative, or the public health authority has provided the school written certification that the vaccination is medically inadvisable; or

(iii) The parent or legal guardian, in his or her discretion, has elected to opt out of the HPV vaccination program, for any reason, by signing a form prepared by the Department of Health that states the parent or legal guardian has been informed of the HPV vaccination requirement and has elected not to participate.

Id.

(55.) Id. [section] 7-1651.04(b)(1)(B)(i)-(iii).

(56.) A. 699, 234th Sess. (N.Y. 2011), available at http://assembly.state.ny.us/leg/?default _fld=&bn=+A00699%09%09&Summary=Y&Text=-Y. The text of the proposed bill is as follows: "Provides for the immunization of all children born after January 1, 1996 with the human papillomavirus (HPV)." Id.

(57.) See id.

(58.) The following states have previously considered passing a mandate: California, Colorado, Connecticut, Florida, Georgia, Illinois, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Missouri, Minnesota, Mississippi, New Mexico, New York, Ohio, Oklahoma, South Carolina, Vermont, West Virginia. See HPV Vaccine, supra note 45.

(59.) See id.

(60.) See, e.g., Micah Globerson, Protecting Women: A Feminist Legal Analysis of the HPV Vaccine, Gardasil, 17 TEX. J. WOMEN & L. 67 (2007); James Colgrove et al., HPV Vaccination Mandates--Lawmaking Amid Political & Scientific Controversy, 363 NEW ENG. J. MED. 785 (2010).

(61.) Law, supra note 48, at 1732.

(62.) Id. at 1761-62.

(63.) Citizenship & Immigration Services retracted the requirement that permanent resident (green card) applicants receive the HPV vaccine when CDC made its criteria more stringent for deciding whether vaccination would be required. The constraints include a requirement that the vaccine either "protect against a disease that has the potential to cause an outbreak" or "protect against a disease that has been eliminated in the United States or is in the process for elimination in the United States." This language substantially limits the types of prophylactic vaccines that can be mandated. Criteria for Vaccination Requirements for U.S. Immigration Purposes, 74 Fed. Reg. 58634 (Nov. 13, 2009) (codified at 8 U.S.C. [section] 1182(a)(1)(A)(ii) (2010)) (explaining the change to the statute). CDC addressed the HPV vaccine in the context of immigration in greater depth, stating:

      CDC has applied the criteria and determined that ... the HPV
   vaccine will not be required for aliens seeking admission as an
   immigrant.... Because HPV infection is common in the general US
   population, is asymptomatic, and because it is not possible to
   distinguish infections which resolve spontaneously from those that
   result in cervical cancer, HPV is not the target of outbreak
   control. Rather a routine vaccination program is recommended to
   prevent infection.... Further, HPV has not been eliminated, nor is
   in the process of elimination, in the United States.

Id.

(64.) Elizabeth Sheyn has written two articles about HPV vaccine mandates in immigration law. She concludes that HPV vaccine mandates contravene the U.N.'s Universal Declaration of Human Rights and other international laws designed to protect human rights because they discriminate on the basis of gender and nationality, and are not scientifically studied substantially enough; her analysis on the sex-discriminatory nature of the mandate is not substantial. See Elizabeth R. Sheyn, An Accidental Violation: How Required Gardasil Vaccinations for Female Immigrants to the United States Contravene International Law, 88 NEB. L. REV. 524, 55139 (2010) [hereinafter Sheyn, International Law]. In addition, Sheyn argues that the vaccine mandate is unconstitutional for immigrant women on equal protection based on nationality grounds and due process grounds. See Elizabeth R. Sheyn, Putting an End to an Unconstitutional Result: Equal Protection and Due Process Analyses of the Requirement that Female Immigrants Receive the Gardasil Vaccine Prior to Becoming Permanent Residents of the United States, 44 VAL. U. L. REV. 1 (2009). In addition, a student note suggests that a vaccination requirement for immigrants should be better supported with scientific evidence prior to mandating it. See Christie V. Canales, Note, HPV Vaccination Requirement for Female Immigrants: An Example of Discrimination, 13 J. GENDER RACE & JUST. 779 (2010).

(65.) Supra note 64.

(66.) See CDC Report on Men, supra note 30 and accompanying text.

(67.) See Sheyn, International Law, supra note 64, at 558 (very briefly concluding that one of the grounds on which the immigration mandate contravenes international law is because it is applied disparately to women).

(68.) Benjamin Lemke, Note, Why Mandatory Vaccination of Males against HPV is Unconstitutional: Offering a New Approach to an Old Problem, 19 B.U. PUB. INT. L.J. 261, 280-81 (2010).

(69.) See id. at 280-84. Lemke relies extensively on a formula he develops and dubs the "Modified Hand Formula" and focuses solely on studies that only address the cancer burdens of HPV on women--the only gender affected by existing mandates. He ignores the broader scope of those affected by HPV and its transmission, resulting in an artificially high economic burden on men to receive vaccination. He makes an assumption--that while one population, women, is disproportionately affected by the virus, the one responsible for transmission, men, should have no role in preventing transmission. Lemke compares the number of women contracting HPV and getting cervical cancer with the number of men contracting HPV and getting anal or penile cancers. This comparison has two fundamental flaws: (1) it ignores the fact that vaccinating men curtails transmission of the virus to women, and (2) it assumes that cancer in women only affects women in society, and that cancer for men only affects men in society. These assumptions lead to his calculation of disproportionately high economic burden on men and give rise to his conclusion that a mandate for men would be unconstitutional because of the discrepancy of costs calculated. Some physicians have argued, however, that because there has been relatively low uptake of HPV vaccination among women, vaccinating men and boys would in fact be a cost effective way to reach the population more fully. See Kim, supra note 41, at 394.

(70.) Lindsey Heinz asserts that the Virginia mandate fails intermediate scrutiny because the sex discriminatory nature of the provision does not do enough to meet the public health objectives of eliminating HPV. Her analysis is relatively conclusory, however, because it assumes the Court's ruling without further analysis of why it would so rule. Lindsey Heinz, Comment, "Please, Don't Shot My Daughter!" Is There Legal Support for State- Compelled HPV Vaccination Laws? Why Ethical, Moral, and Religious Opposition to These Laws May be Jumping the Gun, 56 U. KAN. L. REV. 913, 932-34 (2008).

(71.) See Globerson, supra note 60, at 105. Globerson includes a single brief conclusory paragraph on this issue, stating that Gardasil could not be mandated for men based on earlier arguments regarding women's sexuality, and how and why women should be protected. He performs a "switching the parties" analysis, similar to the one David A. Strauss creates as a framework for analyzing race discrimination. David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. CHI. L. REV. 935, 956-59 (1989). Strauss argues that the key question in determining whether a law can withstand constitutional scrutiny is whether the legislature would have enacted the same statute were the groups reversed. Id. at 957. Using Strauss's framework, the key question is whether the mostly male legislature would have passed the HPV vaccination statute had the vast majority of those affected by the statute been men. If not, then sex discrimination should be considered the but-for cause of the statute. Globerson uses a similar analysis to conclude that if the groups for the HPV vaccination mandate were switched, that is, if the vaccination program targeted boys instead of girls, Texas's HPV vaccination mandate would not have elicited the same response because of "commoditization of female sexuality, virginity-oriented abstinence efforts, gendered policies such as military service, the lasting conceptualization of woman as temptress, the focus on nominal rather than real gender equality, and the battle to restrict women's reproductive rights all describ[ing] a prejudice specifically directed toward women and girls." Globerson, supra, at 105.

(72.) U.S. CONST. amend. XIV. The text of the Equal Protection Clause is as follows: "No state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws." Id. [section] 1.

(73.) The strict scrutiny standard developed in race discrimination cases under the Equal Protection Clause, striking down laws in which the government did not use the least restrictive means to accomplish its ends when race-based classifications were used. The Supreme Court first articulated the "strict scrutiny" standard in Korematsu v. United States, 323 U.S. 214 (1944). The standard was developed for assessing whether racial classifications were valid, and the Court held that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.... [C]ourts must subject them to the most rigid scrutiny." Korematsu, 323 U.S. at 216. The Court added in Loving v. Virginia, 388 U.S. 1 (1967), that "if [the classifications] are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate." Id at 11. The development of the standard in sex-based classifications was much more convoluted, however, as it evolved from a rational basis-like standard to one of intermediate scrutiny during a series of cases. The first case to use equal protection to secure sex equality was Reed v. Reed, 404 U.S. 71 (1971), in which the Supreme Court held a sex-based classification unconstitutional, but without reaching a heightened scrutiny standard. Next, the Court decided in Frontiero v. Richardson, 411 U.S. 677 (1973) (plurality opinion), that a sex-based classification was unconstitutional, but did not agree upon a standard of review. Finally, in Craig v. Boren, 429 U.S. 190, 197 (1976), the Supreme Court created an intermediate scrutiny standard for sex-based classifications.

(74.) Craig, 429 U.S. at 197. This case struck down a sex classification that made it lawful for women to buy 3.5% beer at age 18, while men could not purchase it until the age of 21, treating them differently because of their sex. In invalidating the law, the Supreme Court articulated the intermediate scrutiny standard now used in cases involving challenges to sex-based classifications.

(75.) United States v. Virginia, 518 U.S. 515, 524 (1996) (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982)). In VM/, the Supreme Court held that the school's policy of excluding women was unconstitutional based on the standard quoted in the text. Id.

(76.) See Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972) (describing the strict scrutiny standard as '"strict' in theory and fatal in fact"). But see Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793,796 (2006) (empirically evaluating strict scrutiny and finding that between 1990 and 2003, 27% of applications of strict scrutiny to race-based classifications survived review, and thus arguing that the standard is less fatal than originally believed).

(77.) Rational basis, as defined by the Court in Carolene Products, provides that "the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators." United States v. Carolene Prods. Co., 304 U.S. 144, 152 (1938). Most legislation scrutinized under rational basis review survives because the standard of review is highly deferential to legislatures.

(78.) E.g., Nguyen v. INS, 533 U.S. 53 (2001) (holding that the necessity of a mother being present at childbirth is a biological difference that warrants differential classification to meet the governmental ends of ensuring that citizen parents of out-of-wedlock children are their biological parents); General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) (finding that lack of health coverage for pregnancy-related disabilities was not sex discrimination); Geduldig v. Aiello, 417 U.S. 484 (1974) (holding that a woman's ability to become pregnant is a constitutionally valid basis for classification because it is grounded in a biological difference between women and men). The Supreme Court had the opportunity to re-evaluate the "real differences" principle through Flores-Villar v. United States, 564 U.S.--(2011). Flores-Villar claimed that an immigration statute is unconstitutional because it relies on an impermissible sex classification that imposes more stringent residence requirements on United States citizen fathers than on mothers who wish to transmit citizenship to their children. The Supreme Court split 44, and affirmed the lower court's ruling.

(79.) See supra note 78.

(80.) See Sunstein, infra note 99 (arguing against existence of real differences).

(81.) See infra text accompanying notes 99-101 for scholars' perspectives on hierarchy and how it is supported through differentiating, even biologically.

(82.) See generally Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. REV. 83 (2010).

(83.) See generally Neil S. Siegel & Reva B. Siegel, Pregnancy and Sex Role Stereotyping from Struck to Carhart, 70 OHIO ST. L.J. 1095 (2009).

(84.) See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 733-35 (2007) (holding that racial classifications in the public school non- higher-education context failed strict scrutiny standard and are generally disfavored).

(85.) Ruth Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection, 61 N.Y.U. L. REV. 1003, 1005 (1986) [hereinafter Colker, Anti-Subordination Above All]; see also Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. MIAMI L. REV. 9, 10 (2003) ("this principle holds that the government may not classify people either overtly or surreptitiously on the basis of a forbidden category: for example, their race"); Ruth Colker, The Anti-Subordination Principle: Applications, 3 WIS. WOMEN'S L.J. 59, 63-64 (1987) ("The evil is the differentiation rather than who is acted upon.").

(86.) See Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107, 170-71 (1976); Colker, Anti-Subordination Above All, supra note 85; see also infra Part II.C.1 for further development of these theories of equality.

(87.) See Colker, Anti-Subordination Above All, supra note 85, at 1007. Colker further elaborates on the principle:

   This approach seeks to eliminate the power disparities between men
   and women, and between whites and non-whites, through the
   development of laws and policies that directly redress those
   disparities. From an anti-subordination perspective, both facially
   differentiating and facially neutral policies are invidious only if
   they perpetuate racial or sexual hierarchy.

Id. at 1007-08 (footnotes omitted).

(88.) The courts currently conceive of equality as color-blindness or gender- blindness, ideas that scholars identify as the anti-classification theory. See supra note 84; see also infra notes 140-45 (providing summaries of the theory from the literature).

(89.) Scholars such as Owen Fiss, Ruth Colker, Reva Siegel, and Robin West argue that anti-subordination goals can better address inequality because it looks at systems rather than individuals. See infra notes 146-50.

(90.) See Craig v. Boren, 429 U.S. 190, 197 (1967).

(91.) See supra Part I.B.1-3, discussing various forms of HPV vaccination mandates in the states that have them. All of the existing mandates only require vaccination of girls; none require vaccination of boys.

(92.) See supra notes 74-75 and accompanying text for cases articulating the standard.

(93.) See supra notes 44, 49. The Texas and Washington D.C. laws both included findings that expressed that the statutes' purpose for requiting vaccination was to prevent HPV in girls, thereby reducing cancer burdens. While the scope of the governmental interest could be narrowed to only include curtailing cervical cancer, the vaccines have been shown to be effective at preventing HPV in men. See Giuliano et al., supra note 39, and accompanying text.

For the purposes of the intermediate scrutiny analysis in this Note, because the vaccine is capable of preventing many forms of cancer, all of those forms are targeted.

(94.) See supra notes 46, 49, and 54. Virginia, Texas, and Washington D.C. all have gender-discriminatory mandates.

(95.) See CYNTHIA GRANT BOWMAN ET AL., FEMINIST JURISPRUDENCE: CASES AND MATERIALS 81-86 tbl. (4th ed. 2010) (noting that in the cases challenging sex discriminatory state action on equal protection grounds, sixteen provisions were invalidated, while thirteen were upheld).

(96.) See supra notes 78-89 and accompanying text.

(97.) See, e.g., Nguyen v. INS, 533 U.S. 53, 61-63 (2001) (upholding a statute with a sex-based classification distinguishing between a parent who gives birth and parent who does not give birth because of the biological difference between mothers and fathers at the time of birth); Geduldig v. Aiello, 417 U.S. 484, 494-95 (1974) (upholding sex-based classification of pregnant and non-pregnant persons because it is grounded in the fact that only women are included in the former category, and both men and women are in the latter). But see Nev. Dep't of Hum. Res. v. Hibbs, 538 U.S. 721,735 (2003) (holding the Family and Medical Leave Act constitutional in spite of gender neutral pregnancy leave because states had history of perpetuating gender discrimination in administration of leave benefits); Cal. Fed. Sav. & Loan Ass'n. v. Guerra, 479 U.S. 272 (1987) (upholding a California employment benefits statute that gave pregnant women qualified reinstatement, in spite of challenges arguing that the statute gave preferential treatment to women in a sex-discriminatory fashion).

(98.) See SUSAN GLUCK MEZEY, ELUSIVE EQUALITY: WOMEN'S RIGHTS, PUBLIC POLICY, AND THE LAW 32 (2003) ("Although many had assumed constitutional sex equality had been attained, the high court's most recent decisions indicate that biological sex differences remain an acceptable justification for laws in the United States.").

(99.) While the overall chapter discusses homosexuality and the Constitution more broadly, this particular section cited to questions whether women are truly different from men, and whether it matters if they are. Sunstein argues:

   Differences between men and women--especially those involving
   sexuality and reproduction--are often said to explain sex
   inequality, indeed to be the origin of inequality. But it might be
   better to think that at least some such differences are an outcome
   of inequality, or its product.... I suggest only that many of the
   sex differences that are said to justify inequality--physical,
   psychological, and more--are really a product of inequality....
   [W]e know enough to suggest that nature is not responsible for
   anything like all of what we see.

Cass R. Sunstein, Homosexuality and the Constitution, in SEX, PREFERENCE, AND FAMILY 21719 (David M. Estlund & Martha C. Nussbaum eds., 1997). Sunstein suggests that sex inequality can be better addressed by constitutional jurisprudence as a matter of dismantling a gender-based caste system instead of permitting the system to continue because of alleged differences. Id. at 219.

(100.) ZILLAH EISENSTEIN, THE FEMALE BODY AND THE LAW 79 0988). Eisenstein finds sex difference particularly problematic because "[t]he woman's body ... is inevitably associated with the mother's body, which is more than female because it embodies institutionalized gender 'difference.'" Id. at 80. She further argues that:

   Sex is the realm of biological raw material, and gender reflects
   human social intervention. But we need to recognize that even what
   is thought of as raw biology is socially constructed. This
   ambiguity makes it difficult to distinguish between the
   institutionalized notions of gender and their nongendered
   components because the two are never completely separate. This is
   true of the distinctions between woman's biological particularity
   and her sex "difference": between the pregnant body and the woman's
   body and between the institution of motherhood and biological
   motherhood.

Id. at 81.

(101.) Martha Minow, Justice Engendered, in FEMINIST JURISPRUDENCE 217 (Patricia Smith ed., 1993).

(102.) See supra Part I.B for language of HPV vaccination mandates emphasizing cervical cancer as a consequence of HPV to the exclusion of the many other possible negative effects.

(103.) See Parkin & Bray, supra note 3 and accompanying text.

(104.) See HPV-Associated Cancer Statistics, supra note 1.

(105.) See Burchell et al., supra note 14 and accompanying text (discussing the transmission of HPV).

(106.) See V. Brown & K.A.J. White, The HPV Vaccination Strategy: Could Male Vaccination Have a Significant Impact?, 11 COMPUTATIONAL & MATHEMATICAL METHODS MED. 223 (2010). Brown and White find in their study that including males in the vaccination process allows "eradication of infection possible for a wider range of parameter values," or increases the chance of infection eradication under a greater variety of conditions. Id. at 22830. They also calculate that including males in vaccination programs "actually leads to a slight decrease in the total prevalence of infection at steady state." Id. at 232; see also Mandatory HPV Vaccines, supra note 21.

(107.) See Sunstein, supra note 99 and accompanying text.

(108.) See infra Part II.B (discussing sex stereotypes regarding sexuality).

(109.) See supra note 7 for sources describing background and rationales behind school vaccine mandates. See Bach, supra note 26, at 963 for statistics on how those of low socioeconomic status have the lowest HPV vaccination levels.

(110.) The Court stated: "[W]omen still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena." Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (citations omitted). It has also found that based on data before Congress at the time the Family & Medical Leave Act was passed, "States continue[d] to rely on invalid gender stereotypes in the employment context, specifically in the administration of leave benefits," which provided a justification for upholding the statute, because its provisions attempted to address those invalid gender stereotypes. Nev. Dep't of Hum. Res. v. Hibbs, 538 U.S. 721, 730 (2003).

(111.) In Mississippi University for Women v. Hogan, the Court, in discussing impermissible sex stereotypes, stated: "[T]he test for determining the validity of a gender- based classification ... must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions." Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724-25 (1982). The Court in VMI stated that: "[the government] must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." United States v. Virginia, 518 U.S. 515, 533 (1996) (citing Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 648 (1975); Califano v. Goldfarb, 430 U.S. 199, 223-24 (1977)).

(112.) See Franklin, supra note 82.

(113.) Nev. Dep't of Hum. Res. v. Hibbs, 538 US 721, 734 (2003) ("Congress could reasonably conclude that [existing] discretionary family-leave programs would do little to combat the stereotypes about the roles of male and female employees that Congress sought to eliminate.").

(114.) See, e.g., Craig v. Boren, 429 U.S. 190, 214 (1976) (denouncing the use of unthinking stereotypes to support sex-based classifications).

(115.) See, e.g., Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 585 (1990) (Gender essentialism results in "some voices.., silenced in order to privilege others."); Patricia A. Cain, Feminist Jurisprudence: Grounding the Theories, 4 BERKELEY WOMEN'S L.J. 191, 209 (1989) ("The problem with current feminist theory is that the more abstract and universal it is, the more it fails to relate to the lived reality of many women."). In particular, Trina Grillo questions why "woman unmodified" necessarily implicates the stereotypical, assumed "white, middle class" woman. Trina Grillo, Anti-Essentialism and Intersectionality: Tools to Dismantle the Master's House, 10 BERKELEY WOMEN'S L.J. 16, 19, 21 (1995).

(116.) See Franklin, supra note 82, at 146.

(117.) Id. Franklin goes as far as to say that "the Court's opinion suggests that equal protection law should be particularly alert to the possibility of sex stereotyping in contexts where 'real' differences are involved, because these are the contexts in which sex classifications have most often been used to perpetuate sex-based inequality." Id.

(118.) See Siegel & Siegel, supra note 83, at 1097-98 nn.13-15. The authors discuss how in Michael M. v. Superior Court, 450 U.S. 464 (1981); Geduldig v. Aiello, 417 U.S. 484 (1974); and Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court assumes that pregnancy is a fundamental sex difference warranting differential treatment and thus "[t]he cases do not seriously explore the possibility that traditional sex-role stereotyping shapes judgments about functional rationality or altruism where matters of pregnancy are concerned." Id. at 1098.

(119.) See NANCY F. COTT, THE GROUNDING OF MODERN FEMINISM 210 (1987) ("Private employers discriminating against married women typically reasoned that wives, by definition, did not need to work because their husbands were legally bound to support them. That understanding came ... from the longstanding economic concept of marriage itself--enshrined in common law and custom--requiring the husband's support and the wife's service to him.").

(120.) Martha Minow describes the inherent dilemma raised by pregnancy as sex role stereotyping: "[T]he issue of stereotypes was unavoidable: The dilemma in [Cal. Fed. Say. & Loan Ass'n. v. Guerra, 479 U.S. 272 (1987)] ... was whether women could secure a benefit that would eliminate a burden connected with their gender, without at the same time reactivating negative meanings about their gender." See Minow, supra note 101, at 221. Wendy Williams also makes a compelling argument for the equality approach, rather than the "special treatment" one. See Wendy W. Williams, The Equality Crisis: Some Reflections On Culture, Courts, and Feminism, 14 WOMEN'S RTS. L. REP. 151, 170 (1992). Williams describes the detrimental costs of the special treatment approach, including (1) permitting both favorable and unfavorable treatment of pregnancy, (2) increasing political division in advocating for change, (3) the double-edged sword nature of protectionist legislation, and (4) giving the state too much sway in women's "procreational capabilities." Id. at 170.

(121.) Pregnancy Discrimination Act (PDA) of 1978, Pub. L. No. 95-555, 92 Stat. 2076 (codified as amending 42 U.S.C. [section] 2000e(k) (2011)).

(122.) Nev. Dep't of Hum. Res. v. Hibbs, 538 U.S. 721 (2003).

(123.) Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833 (1992).

(124.) Gonzales v. Carhart, 550 U.S. 124, 169 (2007) (Ginsburg, J., dissenting).

(125.) See Siegel & Siegel, supra note 83, at 1098. The authors argue that in each of these cases, the Court applies an anti-stereotyping approach to explain why it upholds provisions that attempt to diminish pregnancy discrimination.

(126.) See, e.g., supra notes 19, 20, and 35 for examples that focus on HPV in women.

(127.) While there are some pregnancies that do not require such contact, such as those that involve assisted reproduction, the vast majority of pregnancies still occur as a result of vaginal intercourse.

(128.) See Burchell et al., supra note 14.

(129.) See supra text accompanying notes 97-98, 102-03 for pregnancy "real differences" cases and HPV vaccination requirements classifying on basis of sex.

(130.) See infra note 132 and accompanying text.

(131.) See Burchell et al., supra note 14 and accompanying text.

(132.) See NACK, supra note 18, at 6 ("Most Americans subscribe to a gender ideology in which girls and women are morally and socially demeaned by non-marital sexual encounters, whereas these same behaviors serve to elevate the social statuses of boys and men.").

(133.) Adolescent sex education is another school-based source of communicating sex stereotyping. Sex stereotyping in the context of adolescent sex education is particularly delicate because of the immense influence that schools have in their students' psychosocial development, and perceptions of sexuality and their gender roles within it. In an analysis of sex education in schools, Jennifer Hendricks and Dawn Howerton note that a large proportion of sex education curricula involve pervasive sex stereotypes that link sexual activity to "motherhood ... and paternal financial obligation," which "teaches teens to associate sex with traditional gender roles," and also that the curricula emphasize "associations between sex and fear." Jennifer S. Hendricks & Dawn Marie Howerton, Teaching Values, Teaching Stereotypes: Sex Ed and Indoctrination in Public Schools, 13 U. PA. CONST. L. 587, 603 (2011). The authors call for an end to normative privileging of sex stereotypes and traditional sex roles as conveyed through sex education curricula. Id. at 592. Hendricks and Howerton argue, however, that the best way to address gendered and sex stereotyping sex education is through the First Amendment, and not the Equal Protection Clause because they perceive First Amendment doctrine to be more sensitive to eliminating government imposition of values. Id. at 626.

(134.) Sex stereotyping that involves youth is particularly troubling. Youth have a limited opportunity to counter the systemic inequality they face through the stereotyping because their access to courts is limited. There are, of course, always lawsuits filed by parents on behalf of their children challenging educational policies, id. at 28 (citing Montiero v. Temple Union High Sch. Dist., 138 F.3d 1022 (9th Cir. 1998)), but those types of lawsuits presume that parents also oppose the policy at issue.

(135.) See supra notes 5-6. These sources describe how poverty, being Black, or being Hispanic are all correlative of worse HPV-related outcomes.

(136.) See supra notes 5-6.

(137.) Bach, supra note 26, at 963.

(138.) See generally Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987) (arguing that racism and racial bias is unconscious).

(139.) Harris, supra note 115, at 585.

(140.) Anti-classification is also sometimes referred to as anti- differentiation, or anti-discrimination in the literature.

(141.) See supra notes 84-85 and accompanying text.

(142.) Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,551 U.S. 701 (2007).

(143.) Id. at 741 (emphasis in original) (citations omitted).

(144.) Id. at 746 (quoting Rice v. Cayetano, 528 U.S. 495, 517 (2000)).

(145.) Reva Siegel finds that "[t]he fundamentality of the anticlassification principle ... explains various features of our equal protection tradition, foremost among them its commitment to protect individuals against all forms of racial classification, including 'benign' or 'reverse' discrimination." Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 HARV. L. REV. 1470, 1473 (2004). Siegel argues that anti-classification as a governing principle has been used in conflicting ways in the past, and its history and precedential value is less straightforward than the Court suggests.

   The record suggests that, at some points in our history, courts
   have employed claims about the wrongs of racial classification to
   express and to mask constitutional concerns about practices that
   enforce second-class citizenship for members of relatively
   powerless social groups--and at other points in our history, courts
   have employed claims about the wrongs of racial classification to
   block, diffuse, and limit constitutional expression of such
   concerns. The debates over Brown's implementation show the complex
   ways in which concerns about legitimacy have moved courts to mask
   and to limit a constitutional regime that would intervene in the
   affairs of the powerful on behalf of the powerless.

Id.

(146.) Anti-subordination is also sometimes referred to as the group- disadvantaging principle in the literature.

(147.) See supra note 87.

(148.) Proponents of anti-classification claim that the legacy and original intent of Brown v. Board of Education of Topeka, Shawnee County, Kansas, 347 U.S. 483 (1954), which held that "in the field of education, the doctrine of 'separate but equal' has no place," id. at 495, was that racial equality would be achieved through equal protection on an individualized level by removing classifications and through a colorblind Constitution. More recently, scholars have shown that Brown's intent was instead to work against subordination more broadly of African Americans. Reva Siegel argues, "the anticlassification principle was not the ground of the Brown decision but instead emerged from struggles over the decision's enforcement." Siegel, supra note 145, at 1547. Through her research, Siegel finds that the decision actually "teaches that concerns about group subordination are at the heart of the modern equal protection tradition--and, at the same time, suggests important reasons why such concerns have been persistently disguised, qualified, and bounded." Id. at 1547.

(149.) Robin L. West, Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment, 42 FLA. L. REV. 45, 60 (1990). West distinguishes anti-subordination from other models:

   In sharp contrast to the rationality model, the anti-subordination
   model rests not on a universalist vision of our "shared" human
   nature, but on a political vision of our present unequal social
   reality. For constitutional purposes, the relevant issue is
   decidedly not that women are "the same" as men but are treated
   differently or that women are different from men and are treated
   the same.... Thus, the aim of the equal protection clause should be
   to highlight and rectify that political reality and not to
   highlight and mirror similarities or differences between men and
   women.

Id. at 61 (footnotes omitted).

(150.) Reva B. Siegel, Gender and the United States Constitution, in THE GENDER OF CONSTITUTIONAL JURISPRUDENCE 306, 317 (Beverley Baines & Ruth Rabio-Marin eds., 2005).

(151.) Ruth Colker argues, "the courts have made their choices between the anti- differentiation and anti-subordination perspectives without a sound theoretical basis. The anti- differentiation perspective developed pragmatically as a means of redressing subordination, rather than as a theoretical response to the core problem with race or sex discrimination-differentiation or subordination." Colker, Anti-Subordination Above All, supra note 85, at 1013.

(152.) Fiss, supra note 86, at 170-71. Fiss describes first order discrimination as explicit discrimination, such as exclusion of Blacks from public places. Second order discrimination is more subtle, including nondiscriminatory state action or facially "neutral" criteria. He designates affirmative action programs and other preferential treatment third order discrimination.

(153.) Balkin & Siegel, supra note 85, at 10.

(154.) See supra notes 93-94 and accompanying text.

(155.) See supra Part I.B and accompanying text and notes for discussion of the statutory language used in the vaccination mandates at issue.

(156.) Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1,551 U.S. 701,746 (2007).

(157.) See supra Part II.B and accompanying text and notes for discussion of dangers of sex stereotyping in the context of HPV vaccination mandates.

(158.) Serena Mayeri suggests reconstructing the analogy between race and sex so that affirmative action programs in either context have a greater chance of surviving scrutiny, ostensibly under intermediate scrutiny. Serena Mayeri, Reconstructing the Race- Sex Analogy, 49 WM. & MARY L. REV 1789 (2008). Her argument is grounded in the history of how race and sex came to be analogized; I argue here that equal protection might gain more bite if theorists and practitioners harnessed both anti-classification and anti-subordination rationales to achieve their gender justice goals.

(159.) While it is true that if the sex discriminatory vaccination mandates are contested and found unconstitutional, institutional inertia might convince states that promoting school-based vaccination is no longer worth the expenditure of their resources. Based on the statistics on the prevalence of HPV in the United States and the ready availability of the drug, states are likely to continue to consider a gender-neutral HPV vaccination mandate.

(160.) While many states have considered a vaccine mandate, few have enacted statutes requiring vaccination for girls as a condition for entry into public school, in part because of a reluctance to address sexually transmitted infections. Legislators fear backlash from constituents who may promote abstinence-only education and who believe that their daughters are sexually inactive. These legislators may then enact statutes according to outmoded sex stereotypes regarding female sexuality, rather than with the purpose of protecting girls from a preventable disease.

(161.) See supra note 139 and accompanying text.

(162.) See Giuliano et al., supra note 39, at 409.

(163.) See Kim, supra note 41, at 394.

(164.) See generally Hendricks & Howerton, supra note 133 (arguing that sex education needs to prescribe fewer stereotypes as normative values).

(165.) Condoms are not entirely effective at preventing HPV, but do protect against a variety of other sexually transmitted infections, as well as pregnancy. See supra note 18 and

accompanying text (describing condom effectiveness at preventing HPV).

(166.) See Grillo, supra note 115, at 27 ("those of us who are middle-class, or members of otherwise privileged elites, can be used as unwitting perpetuators of the subordination of others") (citing Regina Austin, Sapphire Bound!, 1989 WIS. L. REV. 539, 554).

(167.) See supra note 134 and accompanying text.

(168.) The HPV vaccine only covers, as one would expect, HPV. Other sexually transmitted infections are unaffected by the vaccine, and students should be made aware of that fact so that they can take adequate precautions, even if post-vaccination they no longer have to worry about contracting HPV.

Elizabeth J. Chen, J.D. Candidate (2012), Washington University School of Law; A.B., University of Chicago. This Note was selected as the second place paper in Law Students for Reproductive Justice's 2011 Sarah Weddington Writing Prize for New Student Scholarship in Reproductive Rights. Many thanks to Professor Laura Rosenbury, Professor Rebecca Hollander- Blumoff, Professor Deborah Dinner, Carolyn Aiken, Elizabeth Dillon, and Jane Kim for their guidance, support, and unflagging encouragement.