Simone Lawson
The United States Constitution does not guarantee equal rights for women. While women's suffrage is constitutionally protected, the Constitution does not explicitly prohibit discrimination on the basis of sex. This has resulted in a lack of legal protection for women and LGBTQ+ individuals, as seen in the repeal of Roe v. Wade and the erosion of reproductive rights and transgender rights. The Equal Rights Amendment (ERA), first proposed in 1923, aims to address this issue by guaranteeing equal legal rights for all citizens regardless of sex. Despite gaining support and being reintroduced in Congress multiple times, it has yet to be added to the Constitution.
| Characteristics | Values |
|---|---|
| Constitutional equality | The US Constitution does not guarantee equality of the sexes. |
| Gender equality | The US is an outlier among democratic countries when it comes to guaranteeing rights for individuals based on sex or gender. |
| Right to vote | The 19th Amendment granted suffrage for all American women, but women of color were still discriminated against. |
| Equal Rights Amendment (ERA) | The ERA is a proposed amendment to the US Constitution to guarantee equal rights for men and women. It has been ratified by 38 states but has not been added to the Constitution. |
| Legal protections | The US Constitution does not prohibit discrimination on the basis of sex, and women do not have the same legal protections as men. |
| Violence and discrimination | The lack of constitutional equality for women enables gender-based violence and discrimination, as seen in the United States v. Morrison case. |
| LGBTQ+ rights | The lack of constitutional equality for women has implications for LGBTQ+ rights, including access to abortion and protection from discrimination in housing, employment, and parenting. |
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What You'll Learn
The US Constitution and its lack of protection against gender-based violence
Despite the United States' global leadership and its identity rooted in freedom and equality for all, the country notably lacks constitutional protection for women and LGBTQ+ individuals. This omission is particularly glaring in the context of gender-based violence, where the US Constitution falls short of providing adequate safeguards.
The US Constitution, in its current form, does not explicitly guarantee equal rights for women. The absence of an Equal Rights Amendment (ERA) leaves women vulnerable to discrimination and unequal treatment under the law. This gap in constitutional protection has significant implications, as evidenced by the repeal of Roe v. Wade, the erosion of reproductive rights, and the increasing attacks on transgender rights.
The case of United States v. Morrison in 2000 illustrates the shortcomings of the Constitution in addressing gender-based violence. Christy Brzonkala, a student at Virginia Tech, alleged that she was raped by two men and sued under the Violence Against Women Act. However, the Supreme Court ruled against her, stating that Congress did not have the authority to enact the provision under the Commerce Clause or the 14th Amendment. This decision set a precedent, indicating that survivors of gender-based violence cannot seek civil remedies or sue their attackers for compensation.
The lack of constitutional protection against gender-based violence is not an isolated issue but reflects a broader pattern of discrimination. Police policies often perpetuate stereotypes and contribute to a culture of impunity for perpetrators. For example, non-arrest policies in domestic violence cases deny women equal protection under the law, as guaranteed by the 14th Amendment. Additionally, survivors of gender-based violence, including LGBTQI+ individuals, face significant barriers to reporting crimes due to stigma, fear of persecution, and insufficient protection measures.
The United States' failure to adopt the ERA stands in contrast to the efforts of many other countries. A significant number of democratic nations have taken steps to ensure gender equality and prohibit discrimination based on sex in their constitutions. The international community has recognized the importance of addressing gender-based violence, as evidenced by the United Nations' initiatives and Sustainable Development Goals, which include eliminating all forms of violence against women and girls by 2030.
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The Equal Rights Amendment (ERA) and its potential impact
The Equal Rights Amendment (ERA) is a proposed amendment to the United States Constitution that would explicitly prohibit gender discrimination. The ERA was first drafted in 1923 by two leaders of the women's suffrage movement, Alice Paul and Crystal Eastman. The text of the ERA states 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".
Despite gaining traction in the 1960s with the rise of the women's movement and being approved by the US Senate in 1972, the ERA has faced significant opposition and has not been ratified. In 2020, 38 states had ratified the ERA, but it is still not a part of the Constitution. The lack of protection for women in the Constitution has had real-world implications, such as in the case of United States v. Morrison, where the Supreme Court ruled that a woman who was a survivor of gender-based violence could not sue her attacker for civil remedies.
The potential impact of the ERA, if added to the Constitution, would be significant. It would guarantee equal legal rights for all American citizens regardless of sex and would bring the United States in line with other democratic countries that have explicit provisions for gender equality in their constitutions. The ERA would also empower courts and legislators to address feminist issues and help to overcome obstacles that have kept women as second-class citizens.
However, there are concerns about the potential impact of the ERA. Some opponents argue that it could result in women losing privileges and protections, such as exemption from compulsory military service and economic support from husbands. Despite these concerns, supporters of the ERA believe that the failure to adopt it will result in a loss of gains for women and will send a negative message about feminist issues.
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The implications of the repeal of Roe v. Wade
The United States Constitution does not explicitly recognise women as equal citizens. While the 19th Amendment granted women the right to vote, it did not ensure that men and women were treated equally regardless of sex. In fact, the fight for equal voting rights continued for women of colour, who faced voter suppression tactics and discriminatory laws.
The Equal Rights Amendment (ERA) was introduced in 1923 by suffragist Alice Paul as a constitutional amendment stating that "Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction." Despite gaining traction in the 1960s and approval from the US House of Representatives in 1971 and the Senate in 1972, the ERA has not been ratified. This lack of protection for women is evident in the repeal of Roe v. Wade, which guaranteed a constitutional right to abortion.
Roe v. Wade was a landmark 1973 decision by the US Supreme Court that recognised the right to liberty and privacy in the Constitution, which includes the right to decide whether to continue a pregnancy. The ruling held that restrictions on abortion were subject to strict scrutiny and required the government to have a compelling interest in regulating abortion. This decision invalidated state abortion bans and made abortion care legal, more accessible, and safer nationwide.
However, in 2022, the Supreme Court overturned Roe v. Wade, marking the first time the Court has taken away a fundamental right. The implications of this repeal are far-reaching. More than a dozen states have banned abortion outright, forcing individuals to travel long distances to access abortion care or carry unwanted pregnancies. This directly violates their human rights and impacts low-income people, people of colour, and young people the most.
The repeal of Roe v. Wade also has broader implications for equality and LGBTQ+ rights. It reflects a hypocrisy in the United States' efforts to uplift women in leadership and business while failing to ensure their constitutional equality. The decision has already sparked attacks on transgender rights, with parents of transgender children being threatened with prosecution in states like Texas.
While some states have passed laws to maintain the legality of abortion, the repeal of Roe v. Wade underscores the ongoing struggle for gender equality in the United States and the need for constitutional protection.
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The fight for voting rights for women
The fight for women's voting rights in the United States was a long and arduous journey, spanning decades of agitation, protest, and tireless work by generations of activists. Beginning in the mid-19th century, women organized, petitioned, lectured, wrote, marched, lobbied, and practiced civil disobedience to achieve what many considered a radical constitutional change. The earliest efforts to secure voting rights for women were deeply intertwined with the fight to end slavery, but in the post-Civil War era, the movement fractured along racial lines.
In 1848, powerful calls for women's suffrage were made at a convention in Seneca Falls, New York, kicking off a sustained campaign for voting rights. Despite facing fierce resistance, jail time, and even physical abuse, women champions of voting rights persisted. Strategies varied, with some pursuing state-by-state suffrage acts, others challenging male-only voting laws in court, and some employing more confrontational tactics such as picketing, silent vigils, and hunger strikes.
The movement eventually splintered into two factions: the National Woman Suffrage Association (NWSA), led by Elizabeth Cady Stanton and Susan B. Anthony, advocated for universal suffrage and opposed the 15th Amendment, arguing that Black men should not receive the vote before white women. The NWSA pursued a wide-ranging feminist agenda, including women's social equality and suffrage. The other faction, the American Woman Suffrage Association (AWSA), supported the 15th Amendment and focused exclusively on achieving suffrage for women through a state-by-state approach.
Despite these efforts, it wasn't until 1920 that the 19th Amendment to the U.S. Constitution was ratified, granting women the right to vote. However, the fight for equal voting rights was far from over, especially for women of color, who continued to face voter suppression tactics and discriminatory state voting laws.
Even today, the United States lags behind other democratic countries in guaranteeing rights based on gender or sex. The Equal Rights Amendment (ERA), first introduced in 1923, has still not been added to the Constitution, leaving women and LGBTQ+ individuals without the same protections under the law as men. The implications of this lack of protection are evident in the erosion of reproductive rights and the escalating attacks on transgender rights.
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The National Woman's Party and their proposed amendment
The National Woman's Party (NWP) was an American women's political organisation founded in 1916 by Alice Paul and Lucy Burns, who were influenced by the British suffrage movement and Emmeline Pankhurst's Women's Suffrage Political Union (WSPU). The NWP emerged from the Congressional Union for Woman Suffrage (CU), which Paul and Burns had formed in 1913. The NWP's primary goal was to secure women's suffrage through a constitutional amendment, prioritising a federal approach over state-level efforts.
The NWP employed militant tactics, such as lobbying, civil disobedience, and organising the first White House picket in 1917, which lasted for nearly three years. These strategies, along with public support for imprisoned suffragists, pressured President Woodrow Wilson to endorse a federal woman suffrage amendment in 1918. Congress passed the measure in 1919, and the 19th Amendment was ratified and signed into law in 1920, granting women the right to vote.
However, Alice Paul, the head of the NWP, believed that the 19th Amendment alone would not ensure true gender equality. Therefore, the NWP shifted its focus to advocating for the Equal Rights Amendment (ERA). In 1923, Alice Paul authored the ERA, which stated: "Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction." The ERA aimed to guarantee equal legal rights for all American citizens regardless of sex.
The NWP continued to be a leading advocate for women's rights throughout the 20th century. Despite the efforts of the NWP and other supporters of the ERA, the United States has not adopted the amendment. As a result, the country lags behind other democratic nations in guaranteeing rights based on gender or sex. The lack of constitutional protection for women has had significant implications, such as the erosion of reproductive rights and the vulnerability of survivors of gender-based violence, as highlighted in the United States v. Morrison case.
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Frequently asked questions
No, the US Constitution does not guarantee equality of the sexes. While women’s suffrage is constitutionally protected, nowhere does the Constitution prohibit discrimination on the basis of sex.
The ERA is a proposed amendment to the US Constitution that would guarantee equal legal rights for all American citizens regardless of sex. The text of the amendment reads: "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."
No, despite almost 100 years of efforts by activists, the ERA has not been adopted. In 2019, Virginia became the 38th and final state required to ratify the amendment. However, the amendment has not yet been added to the US Constitution.
