Jonah Patel
The United States is a global outlier when it comes to guaranteeing constitutional equality of the sexes. While 85% of UN member states have explicit constitutional provisions that prohibit discrimination on the basis of sex and/or gender, the US has not adopted the Equal Rights Amendment (ERA) or a similar provision. This means that women and girls in the US are deprived of full constitutional protection from gender discrimination.
| Characteristics | Values |
|---|---|
| Constitutional equality | 85% of UN member states have explicit provisions that prohibit discrimination on the basis of sex and/or gender |
| Constitutional equality | No constitution adopted since 2000 omits protections against sex-based discrimination |
| Constitutional equality | The US is a global outlier when it comes to guaranteeing constitutional equality of the sexes |
| Constitutional equality | The US has not adopted the ERA or a similar provision, which is in violation of the country's international treaty obligations |
| Constitutional equality | The US Supreme Court has used the equal protection clause to address sex discrimination issues |
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What You'll Learn
The Equal Rights Amendment (ERA)
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. For example, the Constitutional Court in Colombia interpreted its constitutional provision to affirm a pilot’s right to health coverage for her miscarriage.
The failure of the United States to adopt the ERA or a similar provision is in violation of the country’s international treaty obligations. Eighty-five percent of UN member states have explicit constitutional provisions that prohibit discrimination on the basis of sex and/or gender. No constitution adopted since 2000 omits protections against sex-based discrimination.
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.
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The Fourteenth Amendment
Despite this, the United States lags behind the rest of the world when it comes to guaranteeing constitutional equality of the sexes. Eighty-five per cent of U.N. member states have explicit constitutional provisions that prohibit discrimination on the basis of sex and/or gender. No constitution adopted since 2000 omits protections against sex-based discrimination.
The Equal Rights Amendment (ERA) sought to guarantee equal legal rights for all, regardless of sex, but it was never ratified. This means it hasn't been officially added to the Constitution because not enough states have approved it.
Until all women 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.
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The US Supreme Court
The Fourteenth Amendment was initially aimed at ensuring racial equality post-Civil War, but it has evolved to address gender discrimination. Landmark Supreme Court cases, such as Reed v. Reed and United States v. Virginia, have struck down laws and policies that discriminate based on gender using "intermediate scrutiny".
Despite these efforts, the US lags behind other countries when it comes to guaranteeing constitutional equality of the sexes. Eighty-five percent of UN member states have explicit constitutional provisions that prohibit discrimination on the basis of sex and/or gender. This figure jumps to ninety-four percent for countries that have adopted constitutions since 1970.
The proposed Equal Rights Amendment (ERA) sought to guarantee equal legal rights for all, regardless of sex, but it has not been ratified because not enough states have approved it. As a result, women and girls in the US lack clear constitutional protections from discrimination in areas such as child marriage, domestic violence, pregnancy discrimination, and parental rights.
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Child marriage laws
The US does not have an explicit constitutional provision that prohibits discrimination on the basis of sex and/or gender. However, the US Supreme Court has used the equal protection clause to address sex discrimination issues. For example, in the case of *Reed v. Reed*, the Court struck down a law that discriminated based on gender using "intermediate scrutiny".
Child marriage is a significant problem in the United States. Between 2000 and 2018, more than 300,000 girls and boys under the age of 18 were married in the United States. In some cases, child marriage may constitute a forced marriage, often in the context of sex trafficking. This enables sexual abuse to continue. Due to the way many US marriage policies are written, finding loopholes is a possibility that has been exploited before. For example, marriage laws have been used to circumvent legal repercussions of sexual activity with a minor.
In the US, a child marriage is defined as a marriage in which at least one party is under 18 years of age. The US is the only UN member state that has not yet ratified the Convention on the Rights of the Child, which sets the minimum age limit for marriage at 18 years. Within the US, each state and territory and the federal district set the marriage age in its jurisdiction. As of March 2024, in four states there is no statutory minimum age when all exemptions were taken into account.
However, this is changing. Delaware and New Jersey in 2018 became the first two states to end child marriage, followed by American Samoa in 2018, the US Virgin Islands, Pennsylvania and Minnesota in 2020, Rhode Island and New York in 2021, Massachusetts in 2022, Vermont, Connecticut and Michigan in 2023, and Washington, Virginia and New Hampshire in 2024. Child marriage remains legal in 37 states.
New federal legislation, The Child Marriage Prevention Act of 2024, aims to close protection gaps in federal law and send a strong message to US states to end child marriage across the country.
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Domestic violence laws
While the US Constitution does not explicitly protect against gender discrimination, the Fourteenth Amendment's equal protection clause has been used to address gender discrimination and advance women's rights. The US Supreme Court has used the equal protection clause to strike down laws and policies that discriminate based on gender.
Despite these efforts, the US lags behind other countries in providing constitutional protection against gender discrimination. Eighty-five percent of UN member states have explicit constitutional provisions prohibiting discrimination based on sex and/or gender, and no constitution adopted since 2000 omits protections against sex-based discrimination.
The proposed Equal Rights Amendment (ERA) sought to guarantee equal legal rights for all, regardless of sex, but it has not been ratified as not enough states have approved it. Without the ERA or a similar provision, the US is in violation of its international treaty obligations.
In the absence of explicit constitutional protection against gender discrimination, women in the US must rely on a patchwork of state and federal laws to protect their basic human rights. This includes domestic violence laws, which are crucial in providing protection and accountability for gender discriminatory practices and policies.
While domestic violence laws are an important tool in addressing gender-based violence, they are not always sufficient to protect victims. There may be barriers to reporting abuse, such as fear of retaliation or lack of awareness of legal options. Additionally, the enforcement of domestic violence laws can be inconsistent, and the legal system may not always respond effectively to protect victims.
To address these challenges, some states have implemented specialised domestic violence courts, which are dedicated to handling these cases and can provide more comprehensive support to victims. There are also efforts to improve training for law enforcement and judicial officials to better recognise and respond to domestic violence.
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Frequently asked questions
No, gender discrimination is not protected by the constitution. In fact, the constitution should protect against gender discrimination.
The Equal Rights Amendment is a proposed amendment to the US Constitution that would guarantee equal legal rights for all, regardless of sex.
No, the ERA has not been ratified. This means it hasn't been officially added to the Constitution because not enough states have approved it.
The US Supreme Court has used the equal protection clause of the Fourteenth Amendment to address sex discrimination issues. It's used to ensure that laws do not unfairly discriminate on the basis of sex.
The US lags behind the rest of the world when it comes to guaranteeing constitutional equality of the sexes. Eighty-five percent of UN member states have explicit constitutional provisions that prohibit discrimination on the basis of sex and/or gender.
