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Constitutional Equality is Non-Negotiable

Today, our Legal Advisor Jorie Dugan spoke in front of the White House on the urgent need to incorporate the Equal Rights Amendment into the US Constitution once and for all. Read her remarks in full below:

The United States likes to think of itself as a global leader, ahead of the curve when it comes to championing democracy and human rights. But we all know that the myth of American exceptionalism is just that – a myth, and that we in fact have much to learn from the rest of the world. This is especially true when it comes to constitutional equality. 

Because when it comes to constitutional equality, the United States is a global outlier.

85% of UN member states guarantee equality and nondiscrimination based on sex and/or gender in their constitutions and 94 percent of constitutions adopted since 1970  include a constitutional guarantee of equality on the basis of sex. 94 percent!

The majority of countries around the world have recognized that:

  • Patchwork legislation is not sufficient to protect the inalienable rights of women, girls and marginalized genders. 
  • They have recognized that constitutional equality is the most effective bulwark against political winds that may seek to strip us of our rights. 
  • They have recognized that a woman’s rights shouldn’t depend on what state or territory or province she lives in.
  • They have recognized that the constitution is a powerful cudgel against the scourge of gender-based violence, harmful practices such as female genital mutilation and child marriage, as well as discriminatory citizenship laws. 

It is past time that the United States recognizes these truths as well.

Arguments like “we already have protections for women and girls, we don’t need a special amendment” and “The Equal Rights Amendment wouldn’t actually impact the everyday lives of Americans” don’t hold up to empirical evidence from around the world.

  • In Nepal, a marital rape exception was invalidated because it violated the country’s constitutional sex equality provision.
  • In Germany, the Constitutional Court relied on the country’s constitutional gender equality provision to strike down laws that were insufficient to protect pregnant women from being fired.
  • In Tanzania, the Court of Appeal found a law, which allowed girls of 15 to be married with parental consent while boys had to be 18 years, to be unconstitutional because it violated Tanzania’s constitutional guarantee on the basis of sex.
  • And in France, the government has relied on the “comprehensive gender equality statute” in its constitution, to implement measures to reduce the gender pay gap; reform parental leave to incentivize equal caregiving; and to provide aid to victims of gender-based violence. 

These are real and tangible outcomes that have improved the lives of women and girls and helped to shatter misogynistic barriers that stymie all people. 

In addition to depriving American women and girls full constitutional protection, the failure of the United States to adopt the ERA violates its international treaty obligations. 

The US has ratified the International Covenant on Civil and Political Rights, which requires it to take all steps necessary to end to sex discrimination and ensure that the law prohibits discrimination on the basis of sex. Without the ERA, the US constitution is out of compliance with international law and human rights standards. The only way to remedy this is to certify the ERA NOW. 

The United States must no longer stand apart in failing its citizens. It is time the US guarantees the fundamental right to equality on the basis of sex in its Constitution.