And yet, despite these dramatic and significant gains in women`s rights, there is still widespread gender discrimination in the form of pay gaps, sexual harassment and violence, and unequal representation in the institutions of American democracy. Going forward, the Constitution should reflect the future of the nation, in which the United States leads the world stage and does not participate, and in which it upholds its central principle of equality for all, regardless of gender or gender. Although the United States is often portrayed as a global leader, it lags behind the 76% of countries in the world with constitutions that guarantee equal rights for women.35 The federal government even lags behind progress in many of its states, with 25 state constitutions explicitly guaranteeing equal rights on the basis of sex.36 When written, The United States Constitution reflected a time when dominant views about women and women`s roles were completely different from what they are today. In recent years, there has been a resurgence of women`s activism, from the Women`s March on Washington to the #MeToo Movement to the record number of women elected to Congress and state legislatures in 2018. Amid this renewed interest in gender equality issues, legislators and advocacy groups such as the ERA Coalition have put change back on the country`s agenda. As mentioned earlier, another concern related to the ERA is that women would be forced to enlist if the U.S. granted conscription or a mandatory military contribution. The reality, however, is that Congress can already enlist women. The Constitution gives Congress the power to raise armies without specifying age or sex. It should be noted that women have been involved in every war the United States has ever fought in various capacities. If the ERA had any influence on whether Congress enlists women in the military, the United States would not be the first to do so. Israel has enlisted men and women in military service by law since 1948.
Protecting our country should not be one man`s business, and it is not. Equality means elevating the oppressed to enjoy the same rights and protection as the most privileged. This includes the freedom to make decisions about one`s own body. Fundamental decisions to protect reproductive autonomy – including in cases such as Roe v. Wade, who affirmed the constitutional right of access to abortion treatment, and Griswold v. Connecticut, Lawrence v. Texas and Planned Parenthood v. Casey made clear that reproductive autonomy is essential to people`s ability to participate in society on an equal footing.19 The ERA could further strengthen this existing constitutional protection and help protect against the growing onslaught of attempts to restrict access to reproductive health care, including abortion and contraception. For example, state courts in Connecticut and New Mexico have found that laws prohibiting Medicaid coverage for medically necessary abortions violate ERA-style language in their state constitutions.20 While the original intent of the 14th Amendment was clearly not to prohibit sex discrimination, it is true that it has since been applied to these cases. Finally, in 1976, the Supreme Court ruled that men and women after the 14th anniversary of the Holocaust. Amendments can only be treated differently if they serve an “important government purpose.” This vague standard was not applied consistently, and protection varied according to the views of each judge. For example, Supreme Court Justice Antonin Scalia publicly proclaimed in 2010 that the 14th Amendment does not legally prohibit sex discrimination.
Unfortunately, the 14th Amendment left women with “a blunt sword [and] a small shield.” The inclusion of the ERA in the Constitution would require the United States to increase equality for all persons, regardless of gender identification. The ERA has some symbolic significance because it clearly communicates that people of all genders are intrinsically equal and deserve constitutional protection. This would show a fundamental respect for the value and support of women and people of all genders, just as the country has done since its inception for the privileged and powerful. And yet, it is not a perfect panacea. ERA will not immediately secure rights for women and people across the gender spectrum that they do not already have under laws guaranteed by more than 100 years of litigation and activism. What the ERA could do, however, is provide essential support in litigation against gender discrimination by strengthening existing legal protections that are currently vulnerable to attacks from the Trump administration and conservative lawmakers. So why is this necessary? The counter-arguments against the ERA highlight the 14th Amendment, arguing that women already have equal rights before the law. Der 14. However, a constitutional amendment was passed in 1868 to give former male slaves equal protection and voting rights.
This was not intended to provide the same for former slaves who were women, or for women in general. This became clear when Myra Bradwell, a white American editor, tried to apply it to her case a few years after she left. Although Bradwell graduated from law school with honors and passed the Illinois bar, she was unable to practice law because she was considered legally “disabled” because she was a married woman. The Illinois Supreme Court found that she did not have a “legal existence” separate from her husband`s. The U.S. Supreme Court has ruled that the 14th Amendment does not require states to open the legal profession to women. A Supreme Court judge noted that “the supreme destiny and mission of women is to exercise the noble and graceful functions of wife and mother.” To clarify, the ERA would apply to government and not to private actors. This means that the impact of the ERA is not immediately drastic and its adoption will not necessarily change the jurisprudence on violence against women.
This can be seen by looking at the results of half of the states that have adopted equality changes at the state level. What ERAs have done at the state level is increase the likelihood that a court will apply a strengthened form of review in cases of sex discrimination. For example, if a law is passed by the federal or local government that violates a right guaranteed by the U.S. Constitution, the court reviewing the law applies a standard of review that is generally determined by the status of the law in question. If the law violates a fundamental right enshrined in the text of the Constitution, such as freedom of expression, the court uses the highest form of review to decide whether the law is unconstitutional. In countries that have their own electronic reverse auctions, the highest form of control is more likely to be applied when considering cases of gender discrimination. The ERA is a crucial step forward, but it is important to recognise that its adoption alone will not end discrimination overnight or lead to immediate equality. The ERA, like other constitutional amendments, would explicitly cover state and government policies, but would not directly address the private sector.
The amendment should only be understood as a fundamental element in the fight for gender equality, providing an additional level of protection that could make a difference in reversing long-standing discriminatory practices. Therefore, it does not replace the crucial role of policymakers to take strong action to combat all forms of discrimination in order to ensure equality and adequate protection for women and people across the gender spectrum. This work must be done with a deep understanding of the intersectional experiences of women of color and gender minorities to see how a combination of factors such as racial and gender bias can erect unique discriminatory barriers.21 This includes at least: Ultimately, the decision on whether to make an ERA rests with Congress. According to case law, Congress may set a deadline for ratification within a “reasonable” and “sufficiently simultaneous” period of time to “reflect the will of the people.”32 The interpretation of current events is a “political question” with ultimate authority in Congress. 33 These judgments make it clear that a delay should not be the only decisive factor for ratification. Notably, the 27th Amendment to the U.S. Constitution was ratified nearly 203 years after it was introduced in the First Congress. At a time of unprecedented attacks by the Trump administration and others on women and the programs and policies they depend on—and the majority of American adults who support the ERA—the amendment seems more ripe than ever for ratification.34 All persons born or naturalized in the United States and subject to its jurisdiction are citizens of the United States and the state in which they reside.