The US Constitution does not in fact guarantee equality of the sexes. While women’s suffrage is constitutionally protected, nowhere does the Constitution prohibit discrimination on the basis of sex.
This, however, is not for lack of trying.
In 1923, suffragist Alice Paul drafted the Equal Rights Amendment (ERA). She proposed: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
The text of the amendment is simple, elegant, and difficult to disagree with. But it has yet to be added to the US Constitution.
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 has thus far 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, have 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. 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. No constitution adopted since 2000 omits protections against sex-based discrimination. Countries such as France, Germany, and Luxembourg have amended their older constitutions in acknowledgment of the concrete harms caused by sex inequality.
The US is 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.
In Nepal, a marital rape exception was invalidated because it violated the country’s constitutional sex equality provision. Germany’s Constitutional Court relied on the country’s gender equality provision to strike down laws that were insufficient to protect pregnant women from being fired.
In Tanzania, the Court of Appeal recently upheld a decision finding the Law of Marriage Act, which allowed girls of 15 to be married with parental consent while boys must be 18 years, to be unconstitutional and in violation of Tanzania’s Constitution, which guarantees equality on the basis of sex.
Countries with constitutional guarantees of sex equality have used such provisions to not only eliminate existing discriminatory laws but also to implement laws that prevent future discrimination. France, relying on the “comprehensive gender equality statute” in its constitution, has implemented measures to reduce the gender pay gap; reform parental leave to incentivize equal caregiving between parents; and to provide aid to victims of gender-based violence.
Constitutional guarantees of equality can also hold private actors accountable for gender discriminatory practices and policies. For example, the Constitutional Court in Colombia interpreted its constitutional provision to affirm a pilot’s right to health coverage for her miscarriage.
As demonstrated by the above examples, the ERA could provide women and girls in the US with protections from discrimination that currently do not have a clear constitutional basis, including laws relating to child marriage, domestic violence, pregnancy discrimination, and parental rights, among others.
In addition to depriving American women and girls full constitutional protection, the failure of the United States to adopt the ERA or a similar provision is in violation of the country’s international treaty obligations. In 1992, the US ratified the International Covenant on Civil and Political Rights (ICCPR), thus making the ICCPR “the supreme law of the land.”
Provisions of the ICCPR require signatories to ensure equal enjoyment of civil and political rights and to take necessary steps to prevent sex discrimination and gender-based violence. At a bare minimum, this requires a constitutional guarantee against sex discrimination. Anything short of that is a failure to comply with international law.
Until all women, no matter their gender identity, race, class, or any other status, have a constitutional guarantee of equality on the basis of sex, they will have to rely on an incomplete patchwork of state and federal laws to protect their most basic human rights.
Nations across the globe have recognized that this is not sufficient and it is 97 years past time that America does as well.