West Virginia v. B. P. J. · ¶191

Nor is the majority’s analysis today persuasive on its own terms. Although it is true that sex classifications can be upheld even when they are not accurate in all applications, as was the case in Nguyen, that bare statement does not speak of what to do when confronted with differences within a class of people who are subject to a sex-based classification. Contra, ante, at 21, n. 5. It does not answer whether the State has “unnecessarily” denied exceptions for readily identifiable “categories” in which the classification did not fit. Trimble, 430 U. S., at 771. It does not answer whether any exceptions exist and if so, what the burdens associated with them are like. All told, it is inconsistent with intermediate scrutiny to dismiss out of hand the existence of classification errors that may show the State has in fact rested on exactly the kind of overbroad generalizations based on sex…

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