The US Constitution does not guarantee equality of the sexes. While women’s suffrage is constitutionally protected, nowhere does the Constitution prohibit discrimination on the basis of sex. This puts the US out of step with the rest of the world to the detriment of its women and girls.
Constitutional guarantees of equality on the basis of sex have been proven to be effective at combating gender-based violence and discrimination around the world. Eighty-five percent of U.N. member states have explicit constitutional provisions that prohibit discrimination on the basis of sex and/or gender. According to the 2020 comparative constitutional analysis, Advancing Equality: How Constitutional Rights Can Make a Difference Worldwide, for countries that have adopted constitutions since 1970, that figure jumps to ninety-four percent. The failure of the United States to guarantee sex equality at the constitutional level not only fails to comply with international standards but also undermines state-level efforts to address the concrete impacts of discrimination against women and girls, as well as the impacts of lack of political and economic representation and gender-based violence.
The ERA could provide women and girls in the United States with protections from discrimination that don’t currently have a clear constitutional basis, including laws related to child marriage, domestic violence, pregnancy discrimination, and parental rights, among others. Current provisions of the Constitution have been inadequate to protect these rights: although the Equal Protection Clause of the 14th Amendment has been interpreted to protect against discrimination on the basis of sex, that understanding of the Amendment is not assured or guaranteed.
What progress has been made? What Is Equality Now doing?
For nearly a century, women have been fighting for the passage of the ERA. And in 2019, the movement scored a historic victory when Virginia became the 38th and final state required to ratify the amendment. However, the Trump Administration refused to accept the ratification as legitimate, prompting the Attorneys General of Virginia, Illinois, and Nevada to file a lawsuit against the Archivist of the United States for his failure to add the amendment to the Constitution. Equality Now, in conjunction with its global partners and with pro bono support from Davis Polk & Wardwell, submitted an amicus brief in support of the AGs’ case. If the case is successful, then the US will cease to be a global outlier when it comes to guaranteeing constitutional equality of the sexes.
As a partner in the ERA Coalition, Equality Now is committed to helping secure the ERA’s passage through Congress. We are dedicated to providing resources and forums for members of the public to learn more about this critical gap in the U.S. Constitution, and how it can be remedied.
For more information, explore our extensive resource center.