Reed, followed by other cases such as Frontiero v. Supreme Court over more than four decades have made clear that the 14th Amendment, which guarantees “equal protection of the laws,” encompasses protections against sex discrimination this is evident first in the 1971 landmark ruling, Reed v. This meant that women and people of color, among others, were openly regarded as less than full citizens and thus excluded from many legal protections because of their sex, race, and/or ethnicity.Įven without an explicit mention of sex in the Constitution, many of the legal protections that seek to promote women’s equality-and equality across the gender spectrum-are rooted in the Constitution’s equality principles and a modern understanding of equality that has surpassed outdated prejudices and stereotypes. The Constitution was written by and for white men with means, which reserved its principle of equal justice under law for the sole benefit of the authors and their privileged peers. Neither “women” nor “sex” are words that appear in the Constitution, revealing the limits of the Founding Fathers’ narrow understanding of women as equal citizens. Historical precedent in the fight for gender equality rooted in the Constitution The absence of an explicit prohibition against sex discrimination in the Constitution remains one key impediment undermining the fight for gender equality and women’s progress overall-and the ERA is an important tool to accomplish this progress. But there is still work to do in order to ensure that women and people across the gender spectrum are treated equally and fairly and have the ability to live their lives as they want. The broader push for gender equality gained momentum over decades, and, even without the ERA, women and people across the gender spectrum have made enormous strides to elevate their status, secure important legal protections, and gain opportunities across society. Although the ERA remains absent from the Constitution, many of the attitudes and practices that spurred its initial proposal have long since been rejected. In particular, many women of color were further constrained by the compounding effects of entrenched racial, ethnic, and gender biases, reinforcing a societal hierarchy where they had diminished status when compared with white women. Legal restrictions-such as prohibitions against voting and property ownership-combined with long-standing stereotypes about women’s roles meant that women were relegated to certain defined spaces and not treated as full citizens. When the ERA was written, women’s status in American society was often considered secondary to men’s. Now, as women and people across the gender spectrum increasingly face mounting attacks on their rights and autonomy, the current push for the ERA is a continued reminder that empty rhetoric and half-measures claiming to support and empower them are entirely inadequate. Constitution could not be fully realized without an explicit, meaningful commitment to equality regardless of sex. 3 Authored by legendary activists Alice Paul, Crystal Eastman, and others in 1923 and later revised, the proposed Equal Rights Amendment (ERA) mandates that: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” 4 Nascent efforts to pass the ERA grew out of a recognition that the commitment to equality rooted in the U.S. One hundred years after women gained suffrage 2-and with a growing number of women in the workforce, holding elected office, and running for president-the time for a constitutional amendment explicitly guaranteeing equal rights regardless of sex is long overdue. The ERA would protect individuals against discrimination on the basis of sex, gender identity, and sexual orientation, the same way that federal statutes such as Title VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 do. This term is intended to be synonymous with other terms, such as “sex-based discrimination,” “gender discrimination,” or “gender-based discrimination,” all of which are intended herein to be comprehensive and inclusive beyond discrimination based solely upon sex assigned at birth to include discrimination based on gender identity, gender expression, and/or sexual orientation. Author’s note: The author uses the term “sex discrimination” throughout this issue brief to match the language in the ERA’s text.
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