concurring in result.
Although I agree with the result reached by the majority opinion, I cannot concur with that part of the opinion which states “30 O.S. 1971 § 11 is not a gender-based discrimination statute.”
In Gordon v. Gordon, 577 P.2d 1271 (Okl. 1978) cert. den’d. 439 U.S. 863, 99 S.Ct. 185, 58 L.Ed.2d 172 (1978), this Court held that the gender-based discrimination directed by 30 O.S. 1971 § 11 was intended to be applied only when the scales were relatively balanced between the attributes of both parents. In essence, 30 O.S. 1971 § 11 was determined to be used as a “tie-breaker.”
The ultimate decision must rest not on the sex of the parent, but which parent will do better in caring for the children. Custodial awards must be made upon what the evidence actually reveals in each case, not upon what someone predicts it will show in many cases.1
The trend in legislation,2 legal commentary, and judicial decisions is to abandon fixed rigidity of the tender years presumption in favor of a flexible and unbiased consideration based solely on the best interest of the children coupled with an analysis of the individual characteristics, qualifications, and relationships of the involved parents and children.3
The gender preference rule is sexually discriminatory on its face and discriminatory as applied by the courts. It is unconstitutional as a denial of equal protection to both sexes. Although Gordon found the statute to be constitutional under any standard of review, in actuality, it denies equal protection under every standard.4 The statute is arbitrary, and under enlightened psychological and pragmatic considerations not only does it bear no rational relationship to the objective it seeks to accomplish, it also fails to withstand the test of strict scrutiny. There is no compelling interest justifying the law, and the distinctions established by the statute are not necessary to further its purpose.5 The verbiage of 30 O.S. 1971 § 11(2) which states, “but, other *305things being equal, if the child be of tender years, it should be given to the mother; if it be of an age to require education and preparation for labor or business, then to the father,” should be stricken as unconstitutional.
I am authorized to state that DOOLIN and OP ALA, JJ., concur in the views herein expressed.
. Johnson v. Johnson, 564 P.2d 71, 74 (Alaska 1977).
. The Uniform Child Custody Jurisdiction Act, 10 O.S. Supp. 1980 § 1605(D), enacted as H.B. 1741 effective October 1, 1980, provides: “The controlling criteria for awarding custody by a court of this state shall always be what is in the best interest of the child, other statutory provisions merely being factors which may be considered.”
. Bingham v. Bingham, 575 P.2d 703, 704 (Utah 1978).
Podell, Peck and First, “Custody To Which Parent?” 56 Marq.L.Rev. (1972); Foster and Freed, “Child Custody,” 39 N.Y.U.L.Rev. 422 (1964).
Colorado Rev.Stat. 46-1-5(7) provides: “No party shall be presumed to be able to serve the best interests of the child better than any other party based on sex.”
See also Fla.Stat. 61.13(2) F.S.A. (1971) and Wis.Stat. 247.24(3) (1971).
. M. Trotter, “Examining Oklahoma’s Maternal Preference Doctrine;” Gordon v. Gordon, 13 Tulsa L.J. 802 (1978).
. See Thayer v. Phillips Petroleum Co., 613 P.2d 1041 (Okl. June 17, 1980) for discussion of the two standard tests, [i.e., 1) the rational relationship of distinctions to a legitimate state purpose, 2) strict scrutiny of classifications involving fundamental interests] used to review legislative classification in cases involving the equal protection clause.