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Women Are Still Constitutionally Unequal to Men, but by All Means, Tell Me Again That We Don’t Need Feminism

WASHINGTON, DC. - JAN. 21: Organizers put the Women's March on Washington in Washington D.C. on Saturday Jan. 21, 2017. (Photo by Alanna Vagianos, Huffington Post) *** Local Caption ***

The Equal Rights Amendment (ERA) was passed by the U.S. senate in 1972 (although first proposed nearly a century ago in 1923, but reintroduced in the 1970’s as a result of a wave of feminism) and sent out to the states for ratification. The ERA would have provided legal equality of the sexes and prohibited discrimination on the basis of sex, sounds great right? You’d assume it would’ve been passed, right? Wrong. The ERA failed ratification when only 31 states approved it, seven states short of the required amount to ratify an amendment.

Ultimately, blatant sexism and a backlash to the rise of feminism caused the failure of what would have been the 27th amendment. To this day people still denounce feminism, declaring the entire movement unnecessary because men and women are equal. Women today are not guaranteed the consistency of equal protection that the Equal Rights Amendment would have ensured, the 14th amendment nor the Civil Rights Act of 1964 protect women from gender discrimination. So, tell me again how women don’t need feminism?

At a glance, many would assume men and women are equal. Sexual equality is not protected or guaranteed under the U.S. Constitution, with the exception of the right to vote. Many will deny the need for an ERA based on the existence of the 14th amendment, but this argument has been invalidated time and time again by multiple cases and statements over the years.

A year after the 14th amendment was passed, Myra Bradwell applied for admission to the Illinois bar, and when she was denied on the basis of sex, she brought her case all the way to the Supreme Court. She attempted to argue that her right to practice law was ensured by the Privileges or Immunities clause of the 14th amendment, but in an 8-1 ruling, the court decided that the clauses didn’t include the right to practice a profession. So, the 14th amendment is not a valid argument to claim we don’t still need an ERA, it does not ensure protection from discrimination based on gender, as it is different from equal protection under the law.

In 1868 when the 14th amendment being proposed, no one was considering that equal protection applied to gender discrimination, and we are certainly in the wrong for trying to do so. There is nothing that the court will do to shelter women from government-sanctioned discrimination, according to late Supreme Court Justice Antonin Scalia. Many past justices have included women in the 14th amendment as a precedent, but the harsh reality is that the 14th does not guarantee protection from gender-based discrimination.

“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.Antonin Scalia

In 1976, the court actually ruled that women could be treated under the law if it served an “important governmental objective”, essentially courts can rule as they see fit in cases that fall into the gray area of gender discrimination, there are absolutely no promises of consistency in these cases. Discrimination on the basis of gender won’t be held to the same level of strict scrutiny as say racial discrimination, which is held to the highest level of judicial review because of its specific mention in the 14th amendment. Usually, claims of gender discrimination require extremely persuasive evidence to hold up in court.

An ERA is absolutely necessary to ensure the highest level of scrutiny applied to cases of discrimination against women. Too often women have been spoken over, disregarded, or mistreated, and without the insurance provided by an ERA, women are still constitutionally vulnerable to discrimination. The allowance of gender-based discrimination should have no standing in the workplace or in any other area of a woman’s life. Especially in the current state of our society, a vulnerability could be easily exploited. We need an ERA, and we still need feminism to get there.

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