Malcolm Rivera
The United States Constitution does not explicitly mention women or limit any of its rights or privileges to males. The word persons is used, which is gender-neutral. However, common law inherited from British precedents influenced the interpretation of the law, and many state laws were not gender-neutral. While the Fourteenth Amendment, added in 1868 after the Civil War, was initially aimed at ensuring racial equality, its interpretation has expanded over time. The Supreme Court has used the Fourteenth Amendment's equal protection clause to address sex discrimination issues and advance women's rights, examining claims of discrimination with intermediate scrutiny. 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.
| Characteristics | Values |
|---|---|
| Is there explicit mention of sex discrimination? | No, the US Constitution does not explicitly mention sex or gender discrimination. |
| Relevant Amendments | The Fourteenth Amendment, which guarantees due process and equal protection under the law, has been interpreted by the courts to include protection against sex discrimination. |
| Landmark Cases |
|
| State Constitutions | Many state constitutions explicitly prohibit sex discrimination. For example, the California Constitution, Article I, Section 31, states, "State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin..." |
| Interpretation and Application | The interpretation of the Constitution with regard to sex discrimination has evolved over time. While there is no explicit mention of sex discrimination in the original text, the courts have interpreted the Fourteenth Amendment as providing protection against such discrimination. |
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What You'll Learn
The Fourteenth Amendment and equal protection
The Fourteenth Amendment to the United States Constitution addresses citizenship rights and legal equality. The amendment's most well-known and litigated phrase is "equal protection of the laws", which is part of the first section and mandates that individuals in similar situations be treated equally by the law. This clause, which came into effect in 1868, was primarily intended to validate the equality provisions of the Civil Rights Act of 1866, ensuring that all citizens had the right to equal protection under the law.
The Fourteenth Amendment marked a significant shift in American constitutionalism, imposing greater constitutional restrictions on states than had been in place before the Civil War. While the Equal Protection Clause only applies to state and local governments, the Supreme Court has ruled that the Due Process Clause of the Fifth Amendment requires equal protection under federal law as well. The Fourteenth Amendment has been invoked in numerous landmark cases, including Brown v. Board of Education, Roe v. Wade, and Reed v. Reed (gender discrimination).
The interpretation of the Equal Protection Clause has been a subject of debate, with historians arguing that it was not originally intended to grant broad political and social rights, but rather to solidify the 1866 Civil Rights Act. However, many adopt a broader view, interpreting the amendment as always intending to ensure equal rights for all in the United States. This interpretation has been used to expand protections for various groups, including Black Americans.
The Fourteenth Amendment's equal protection clause has been crucial in combating discrimination based on gender identity and sexual orientation. In Bostock v. Clayton County, the Supreme Court held that Title VII's prohibition on discrimination "because of...sex" covers discrimination based on gender identity and sexual orientation. This interpretation applies to other laws prohibiting sex discrimination, such as Title IX of the Education Amendments of 1972 and the Fair Housing Act.
The Constitution's guarantee of equal protection ensures that courts review laws discriminating against women and pregnant people under heightened scrutiny. State constitutions also offer independent protections against sex discrimination and reproductive control, with some state high courts providing stronger protections than federal law.
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Gender identity and sexual orientation
The Constitution of the United States promises equal protection under the law, and this includes protection from discrimination on the basis of gender identity and sexual orientation. The Supreme Court has interpreted Title VII of the Civil Rights Act of 1964 to include sexual orientation and gender identity as protected characteristics, prohibiting discrimination in employment on these grounds. This was decided in the Bostock v. Clayton County case in 2020, where the Court held that Title VII's prohibition on discrimination "because of...sex" covers gender identity and sexual orientation.
The Court's ruling has been hailed as a landmark decision for the LGBT community, as it provides clear protection from discrimination in the workplace. The ruling means that employers cannot fire or otherwise discriminate against individuals simply for being gay or transgender, as this would violate Title VII. This interpretation of Title VII has been enforced by the President, who has issued an executive order to prevent and combat discrimination on the basis of gender identity or sexual orientation.
However, the Supreme Court's ruling in Bostock was not unanimous. Justice Alito, joined by Justice Thomas, dissented, arguing that discrimination because of "sex" is distinct from discrimination because of "sexual orientation" or "gender identity." Alito asserted that the Court's role is to interpret statutory terms as they would have been understood when written, and that reasonable people in 1964 would not have interpreted "because of sex" to include sexual orientation and gender identity.
Despite this dissent, the Bostock decision has had a significant impact on the law surrounding gender identity and sexual orientation. The Supreme Court's interpretation of Title VII has been applied to other laws that prohibit sex discrimination, such as Title IX of the Education Amendments of 1972, the Fair Housing Act, and the Immigration and Nationality Act. These laws, under the Bostock ruling, also prohibit discrimination on the basis of gender identity and sexual orientation, unless there are sufficient indications to the contrary.
In addition to the Bostock case, the Supreme Court has also addressed sexual orientation and gender identity in other landmark cases. For example, in Romer v. Evans, the Court struck down a state constitutional amendment that overturned local ordinances prohibiting discrimination against homosexuals, lesbians, and bisexuals. The Court found that the amendment failed to meet even a restrained review, as it served no legitimate governmental interest. Similarly, in United States v. Windsor, the Court struck down Section 3 of the Defense of Marriage Act (DOMA), which restricted federal recognition of same-sex marriages. The Court held that this section of DOMA violated "basic due process and equal protection principles." These cases, along with Bostock, have helped to shape the legal landscape surrounding gender identity and sexual orientation, providing clearer protections against discrimination and ensuring equal treatment under the law.
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Reproductive freedom and equality
The Constitution's guarantee of equal protection under the law includes protection from sex discrimination. The Fourteenth Amendment guarantees equal protection and due process under the law, and the Supreme Court has interpreted this to include a right to privacy and to control one's body, which is a core pillar of reproductive autonomy. The Supreme Court's ruling in Bostock v. Clayton County affirmed that Title VII's prohibition on discrimination "because of...sex" covers discrimination based on gender identity and sexual orientation.
Despite these protections, the Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization held that abortion services are a matter for legislative action rather than constitutional protection, refusing to recognize the Constitution's liberty and equality guarantees for pregnant people's bodies and decisions. This ruling has been criticized for perpetuating inequality and threatening the health, safety, and lives of pregnant people.
State constitutions offer independent protections against discrimination based on sex and reproductive control, and many state high courts have recognized stronger protections than those guaranteed under federal law. The Reproductive Freedom for All Act, a proposed federal legislation, seeks to guarantee reproductive freedom by ensuring that all persons have the right to make certain reproductive decisions without undue government interference.
International human rights law also recognizes reproductive autonomy as a critical protection, with the United Nations Population Fund advocating for equality and equity for men and women to make free and informed choices without discrimination based on gender. The Beijing Platform framed women's reproductive rights as "indivisible, universal, and inalienable human rights," and denounced gender-based violence, including forced sterilization as a human rights violation.
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State constitutions and sex discrimination
The US Constitution promises equal protection under the law, and the nation's anti-discrimination laws reflect these principles. Title VII of the Civil Rights Act of 1964, as amended, prohibits discrimination "because of sex". In Bostock v. Clayton County, the Supreme Court held that this prohibition covers discrimination on the basis of gender identity and sexual orientation.
State constitutions also offer protections against sex discrimination, and many state high courts have recognised stronger protections than those guaranteed under federal law. For example, the South Carolina Supreme Court held that a ban on abortion at six weeks of pregnancy violates the state constitution's right to privacy and acknowledged that gender equality is at stake when the government controls decisions about pregnancy.
State equal rights amendments in several states' constitutions explicitly prohibit discrimination based on sex. For instance, Alaska's constitution states that "No person is to be denied the enjoyment of any civil or political right because of race, colour, creed, sex or national origin". Similarly, Colorado's constitution states that "Equality of rights under the law shall not be denied or abridged by the state of Colorado or any of its political subdivisions because of sex".
Around twenty states have ruled that provisions in their constitutions expand the protection guaranteed against sex discrimination, with some states interpreting this to mandate a nearly absolutist approach or strict scrutiny. For example, Pennsylvania, Colorado, Washington, Maryland, and Massachusetts have stringent protections, with their courts ruling that the main intent of the ERA was to abolish using sex to make legal distinctions.
State constitutions are vital in protecting reproductive rights and autonomy, especially in the wake of the US Supreme Court's regressive decision in Dobbs, which refused to recognise the Constitution's liberty and equality guarantees for pregnant people.
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Supreme Court rulings on sex discrimination
The US Supreme Court has made several rulings on sex discrimination, including cases involving gender discrimination and women's rights. Here are some notable examples:
Bostock v. Clayton County
In 2020, the Supreme Court ruled that a 1964 federal civil rights law prohibiting workplace discrimination "because of sex" protected transgender employees. This decision clarified that discrimination based on sexual orientation and gender identity is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. The Court held that an employer who fires someone solely for being homosexual or transgender violates Title VII.
EEOC v. Wyoming
In this case, the Supreme Court upheld the constitutionality of the Age Discrimination in Employment Act as it applies to state and local governments. The Court ruled that state and local governments cannot discriminate against employees or job applicants based on their age.
Meritor Savings Bank v. Vinson
In Meritor Savings Bank v. Vinson, the Supreme Court recognized that sexual harassment is a violation of Title VII. The Court acknowledged that sexual harassment can constitute unlawful employment discrimination, and it cited the EEOC's policy guidance on this issue.
General Electric Co. v. Gilbert
In this case, the Supreme Court ruled that a health insurance plan for employees that excluded benefits for disabilities arising from pregnancy did not constitute sex discrimination under Title VII. However, the Court acknowledged that only women can become pregnant, indicating a connection to sex-based discrimination.
Alexander v. Gardner-Denver Co.
The Supreme Court ruled that an employee who submits a discrimination claim to arbitration under a collective bargaining agreement can still sue their employer under Title VII. The Court reasoned that the right to be free from unlawful employment discrimination is a statutory right and cannot be bargained away.
Corning Glass Works v. Brennan
The Supreme Court held that under the Equal Pay Act, a plaintiff must prove that their employer pays employees of one sex more than employees of the other sex for substantially equal work. This case established standards for pay discrimination claims and reinforced the principle of equal pay for equal work.
These rulings by the US Supreme Court have played a significant role in shaping the legal framework surrounding sex discrimination, transgender rights, sexual harassment, and equal pay. They have expanded the interpretation of Title VII and strengthened protections against discrimination in the workplace and beyond.
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Frequently asked questions
The Fourteenth Amendment to the US Constitution, added in 1868 after the Civil War, was initially aimed at ensuring racial equality. However, its interpretation has expanded over time to address gender discrimination through its equal protection clause. While the US Constitution does not explicitly mention sex discrimination, the Supreme Court has used this equal protection clause to address sex discrimination issues and advance women's rights.
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". In Craig v. Boren, the court threw out a law that treated men and women differently in setting a drinking age.
The Supreme Court has also used the Fourteenth Amendment to address sex discrimination based on gender identity or sexual orientation. In its 1996 decision, Romer v. Evans, the Court struck down a state constitutional amendment that overturned local ordinances prohibiting discrimination against homosexuals, lesbians, or bisexuals. In 2013, the Court also struck down Section 3 of the Defense of Marriage Act (DOMA), which restricted federal recognition of same-sex marriages.
Yes, in addition to the Fourteenth Amendment, other laws and amendments have been proposed or enacted to address sex discrimination. The Equal Rights Amendment (ERA), for example, sought to guarantee equal legal rights for all, regardless of sex. While it was passed by Congress in 1972 and sent to the states for ratification, it did not receive enough state approvals to be officially added to the Constitution. However, state constitutions offer independent protections against discrimination based on sex, and many state high courts have recognized stronger protections than those guaranteed under federal law.
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