Women and men are not considered equal under the law. Yet, equality under the law is fundamental to a democracy. With Women’s Equality Day on Saturday, this is a time to remember why we need an Equal Rights Amendment.
The problem is the U.S. Constitution prohibits discrimination by race, religion and national origin, but it is one of very few constitutions in the modern world that does not explicitly protect its citizens against sex discrimination.
American women are routinely paid lower wages than men for equal work. It is difficult for employees to know what others are paid and to argue for fairness with the employer. Recent court cases, such as Wal-Mart v. Dukes, have upheld ways in which employers can avoid paying equitably. Despite overwhelming evidence of gender discrimination, stringent time limits for complaints and punishment by retribution prevent most women from making complaints. Equal pay should follow equal work, regardless of previous jobs.
The Affordable Care Act prohibited for the first time “gender rating,” an unfair practice by American insurance companies that targeted women with higher rates not related to actual care, saving American women $1 billion a year. But that law has been hanging by a thread. Gender rating could return if the health care law is repealed. An Equal Rights Amendment would give women a strong protection from this kind of explicit discrimination.
What is clear from the past is that the 14th Amendment, which guarantees equal protection under the law, has not been effective in protecting women from sex discrimination. It was passed in 1868, to give rights to recently freed slave men. In a literal interpretation of the Constitution, the 14th Amendment was never intended to address sex discrimination, and it doesn’t.
Except by granting women the right to vote, the Constitution does not include women in its protections.
Instead, we have a patchwork of legislation trying to take the place of a simple declaration of equal rights for women at the constitutional level: the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the Violence Against Women Act of 1994 and many more laws that are difficult to enforce.
Congress tried to correct this glaring omission in 1972, when it voted to extend protections to women with the Equal Rights Amendment to the Constitution. But the Equal Rights Amendment never became law because a handful of states failed to ratify it.
The amendment could support the equal treatment of the sexes, benefiting both women and men. It would give Congress the power to enforce equal rights, including prohibiting wage discrimination against women. Giving women equal pay and opportunity could potentially increase our gross national product by an estimated 5 percent. When it comes down to it, equal rights are good for business.
An Equal Rights Amendment would resolve unfair practices that have been stuck in litigation for years, blocking women from parts of the military and other “traditionally male” work. Put simply, the Equal Rights Amendment would bring our Constitution into the 21st century.
Don’t be fooled. We are losing ground when laws are passed without solid constitutional basis only to be undermined by changing political currents. We are losing ground when simple principles of equality and fairness are overpowered by systemic bias and short-term profits. We are losing ground when we cannot get an Equal Rights Amendment to the Maine Constitution passed, as many other states have done.
We all benefit when women are paid fairly for equal work and when people share fairly in the bearing and raising of children. We all benefit when everyone’s freedoms are respected. Can we agree that all Americans, male or female, should be equally protected by our Constitution?
Someday, we won’t need a Women’s Equality Day because this glaring omission in our democracy will have been corrected. Next Election Day, vote for a candidate who will support the ratification of the Equal Rights Amendment. Speak up.
Nancy Murdock is a founding member of Equal Rights Maine. She lives in Brooklin.