The United States must guarantee equality on the basis of sex in the Constitution
On 29 June 2020, Equality Now and human rights organizations from every region of the world filed an amicus curiae brief in Commonwealth of Virginia, et al v. Ferriero in the United States District Court for the District of Columbia in support of the plaintiffs’ demand that the Government finally certify and incorporate the ERA into the US Constitution.
The Equal Rights Amendment (ERA), ratified by the required number of 38 states, adds express language to the United States Constitution guaranteeing equality on the basis of sex. The three latest states to ratify the ERA - Virginia, Illinois, and Nevada - have filed a case before the District Court of Columbia demanding the incorporation of the ERA into the Constitution. In the course of almost 30 years working to address sex inequality and violence around the world, Equality Now has seen the pervasive damage wrought by inequality, and conversely, the tremendous benefits gained by countries which have embraced equality in the law and in practice.
Equality shouldn’t depend on where you live
In the brief in support of the plaintiff states, we* seek to highlight the worldwide success of constitutional equality amendments, provisions required under international law, and to argue that a patchwork of state laws in some states (but not others) is insufficient to address sex inequality. In most other countries in the world, a woman’s rights do not depend on which part of the country she happens to reside in. An American woman or girl should enjoy the same rights and protections whether she lives in Virginia or Illinois (which have passed state-level constitutional sex equality amendments) or Alabama, Louisiana, South Dakota, or Tennessee (which lack state-level constitutional sex equality guarantees and which have intervened in this case to block equal rights). The ERA would allow all women and girls to benefit from an express guarantee of equality, something the vast majority of nations already provide.
Inequality causes real harm
As the ERA Coalition, in which Equality Now is a lead organization, also asserts in another amicus brief, women and girls in the United States - particularly those from marginalized communities - suffer concrete injury from ongoing discrimination, lack of political and economic representation, and inadequate protection from gender-based violence, including, for example, domestic violence, female genital mutilation (FGM), sexual violence and child marriage. Only constitutional action on a nationwide basis can ensure the universal right to equality on the basis of sex.
An unfortunate international outlier
The United States’ failure to expressly guarantee equality at the constitutional level is shocking. The rest of the world has recognized the harms of discrimination on the basis of sex, including violence against women and girls, and that constitutional action is necessary to address them. Eighty-five percent of U.N. member states that have constitutions explicitly guarantee equality for women and girls. These constitutional guarantees have enabled national legal reforms that eliminated discriminatory statutes and have facilitated laws that protect women and girls.
Additionally, the United States’ failure to adopt the ERA violates its binding international legal obligations. In 1992, the United States ratified the International Covenant on Civil and Political Rights (ICCPR), which requires it to take all steps necessary to put an end to sex discrimination and to ensure that the law prohibits discrimination on the basis of sex. Without the ERA, the current constitutional structure in the United States is inadequate to bring the United States into compliance with the ICCPR. The U.S. has also signed the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which has a core purpose of ending all forms of discrimination against women without delay. Furthermore, the guarantee of equality has attained the status of customary international law, which the United States is violating in failing to certify the ERA as part of its Constitution. Immediate incorporation of the ERA is a necessary step to remedy the failures of the United States to comply with its obligations and duties under international law.
A decision in the case could come as early as August 2020. Stay tuned!
*The brief, joined by WORLD Policy Analysis Center, the Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM), the Equal Rights Trust, the European Women’s Lobby (EWL), FEMNET, the Arab Women Organization (AWO), International Women’s Rights Action Watch Asia Pacific (IWRAW-AP) and the Sisterhood is Global Institute, was filed with the pro-bono assistance of law firm Davis Polk & Wardwell LLP.