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The United States must guarantee equality on the basis of sex in the Constitution

On January 10th,  2022, Equality Now and organizations that fight for equality around the world filed a brief as amici curiae in Commonwealth of Virginia et al v. Ferriero in support of the Plaintiff-Appellants’ appeal to the United States Court of Appeals for the District Court of Columbia Circuit following the  March 5th  2021 erroneous decision in the lower court.  The  Plaintiff-Appellants – the three latest states to ratify the Equal Rights Amendment (ERA) – Virginia, Illinois, and Nevada – are demanding that the Government finally certify and incorporate the ERA into the US Constitution. The ERA, ratified by the required number of 38 states, adds express language to the United States Constitution guaranteeing equality on the basis of sex.

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 briefwomen 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.

The United States must no longer stand apart in failing its citizens by denying them the fundamental right to equality on the basis of sex in its Constitution.

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.