Editor’s Note: Jody Heymann is founding director, Amy Raub is an economist, and Aleta Sprague is a senior legal analyst at the WORLD Policy Analysis Center at UCLA. They are co-authors of ‘Advancing Equality’, being released by University of California Press on January 14. The views expressed in this commentary belong to the authors. View more opinion articles at CNN.
Eighty percent of Americans wrongly believe the US Constitution ensures that men and women have equal rights, according to one poll. It doesn’t – and it’s about time the US enshrines the Equal Rights Amendment in the supreme law of the land.
Women gained the constitutional right to vote in 1920 and it took nearly half a century later before laws guaranteed equality at work. While Congress passed the ERA – which establishes equality regardless of sex – in 1972, it languished for decades after it failed to reach the 38-state ratification threshold required to amend the US Constitution.
After a renewed push in recent years, activists are now looking to Virginia, where Democrats won a majority in the November 2019 elections, to become the 38th state to ratify the ERA. But the Justice Department’s Office of Legal Counsel argued that the deadline to ratify the ERA has expired, and advocates, policymakers and legal experts have weighed in on its future. Amidst all of the debates about legal procedures, it’s easy to lose sight of how vital the ERA is for our country—or how far the US lags behind the rest of the world in this regard.
We have released a new study that shows that the US is one of just 28 nations that has failed to provide an explicit guarantee of equal rights or non-discrimination on the basis of sex or gender. Globally, the US now lags 165 other nations with stronger constitutional protections for women.
Every constitution adopted since 2000 from Afghanistan’s to Zimbabwe’s—has included a gender equality guarantee. And in the full range of political and social settings, these constitutional guarantees have helped move equality a step forward, from empowering individual women to claim their rights in court in Tanzania, providing a foundation for new laws addressing gender-based violence in Nepal, or providing a tool for women demanding equal pay in Switzerland.
Why has the US Constitution fallen behind other countries in calling for the equal treatment of women and men? It is not simply because we have an old constitution. In fact, other countries with old constitutions have recognized the importance of adding gender equality provisions to reflect their commitment to equal rights.
Paradoxically, critics of the ERA have argued that the amendment would have both a major impact and no impact. On one hand, fearmongers claim that guaranteeing equal rights would hurt women by mandating the identical treatment of men and women in all circumstances. There is ample experience globally to disprove this. In many of the 165 countries that constitutionally guarantee gender equality, these provisions have been found consistent with laws and policies that allow for differential treatment to achieve greater equality in practice, by preventing gender-based violence, for example, or facilitating women’s full representation in workplaces and governments.
Moreover, constitutional equality provisions have not impeded commonsense measures that treat women differently such as laws allowing new mothers to take breastfeeding breaks during the workday, which exist in the vast majority of countries.
On the other hand, critics have argued that the 14th amendment, one of three amendments adopted after the Civil War, makes the ERA redundant by stipulating that all persons have “equal protection of the law,” even though it does not specifically guarantee equal treatment across sexes.
The ERA’s critics are correct that the 14th amendment has enabled great strides for gender equality: as a litigator in the 1970s, Ruth Bader Ginsburg used the Equal Protection Clause to extend legal equality on the basis of sex, including through several landmark cases striking down laws that did not give men who were caregivers or homemakers the same benefits as women. However, gender equality is still held to a lower constitutional standard than racial equality and the road to these legal victories was tortuous. The ERA would provide a more powerful foundation for enforcing gender equality in the US.
We’ve seen this in other countries. In Spain, for example, constitutional provisions for gender equality have been used to remove penalties for women taking maternity leave and to ensure workers in gendered occupations receive equal pay for work of equal value. In Germany, the Constitutional Court found that the gender equality provision provided the foundation for an innovative parental leave policy, which incentivizes both fathers and mothers to take leave. As these cases show, constitutional gender equality makes a difference for both men and women when it comes to economic and caregiving opportunities.
Adopting the ERA would also send a critical message about American values and have practical benefits. Constitutionally guaranteeing gender equality would allow individuals to more easily claim their rights in court. It also would guard against the potential roll-back of rights following changes in presidential administrations. For example, a stronger constitutional commitment to gender equality would offer greater protection against the recent threats to Title IX, the federal law addressing gender equality in education.
Beyond the human and societal value, constitutional gender equality can yield hundreds of billions in GDP growth. According to a 2016 study from McKinsey, closing the gender gap in the economy by 2025 would add $4.3 trillion to US’ GDP. The Constitution provides a clear process to ensure that the architecture of our republic can adapt, whether it be by adding the first amendment to guarantee freedom of religion in 1791 or abolishing slavery in 1865.
It’s telling that a large number of Americans believe the Constitution already protects gender equality, and there’s tremendous support for the ERA; 94% of Americans, including 90% of men, are in favor of it. It’s been a century since the US constitution was amended to ensure that the right to vote could not be denied or abridged on the basis of sex. It’s time to finish the job and expand equal rights to include full equal protection under the law.