U.S. Lacks Concrete Domestic and International Modes of Legal Protection for U.S. Women
By Marie Wilken
Most Americans—80%—believe women’s rights are guaranteed by the Constitution. Most would likely similarly assume that the U.S. is one of 189 countries to have ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). But the United States neither constitutionally protects women’s rights nor is a state party to the treaty considered an international bill of rights for women. The Equal Rights Amendment (ERA) and CEDAW share similar stories of failed ratification: both passed the initial stages of adoption in the 1970s but, despite decades of activism, have yet to be ratified, denying women in America access to rights they are entitled to and deserve.
The United States has a current set of laws protecting women’s individual rights, so why are CEDAW and the ERA necessary? Both serve as tools to advance gender equality by codifying women’s rights and providing stronger legal frameworks to combat discrimination. CEDAW is an international human rights treaty that pursues equality between men and women in all areas of life. The UN General Assembly adopted CEDAW in 1979, and a committee to ensure compliance was established in 1982. While Jimmy Carter signed the treaty in 1979, it did not get the necessary two-thirds vote from the Senate to ratify it. This puts the United States in the company of a small number of countries—Somalia, Iran, the Holy See, Sudan, Tonga and Palau—that have not ratified CEDAW.
Ratification would positively influence both policy and court case decisions. When the United States previously considered CEDAW and other human rights treaties, it watered them down with reservations, understandings, or declarations (RUDs)—conditions that limit the applications of the treaties by preventing them from being more stringent than standing domestic law. Assuming that the United States didn’t adopt prohibitive RUDs, CEDAW could significantly strengthen protections of women’s rights.
By ratifying CEDAW, the United States would agree to periodic reviews by the independent experts on the CEDAW Committee to evaluate its implementation of the treaty. Other countries’ reviews have prompted public debate, policy decisions and national equality action plans. CEDAW’s provisions cover many areas in which the U.S. is still lacking, such as equal pay, parental leave, domestic violence and healthcare access. In the courts of countries that have ratified CEDAW, it has been used to strike down a number of laws criminalizing abortion and other laws that contradict the Convention. CEDAW has also often been applied in domestic court cases (see the examples in GJC’s CEDAW Casebank).
Ratification of the ERA would similarly benefit women’s rights. The ERA was introduced by suffragette Alice Paul in 1923 after women won the right to vote. In 1972, pushed by the women’s movement, Congress passed the ERA, but it was three states short of the 38 states needed to ratify a constitutional amendment before the deadline (last year, 35 years past the deadline, Nevada ratified the ERA).
The ERA would constitutionally guarantee women’s equal rights. The main section of the short amendment simply states: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Other than the right to vote, the Constitution currently does not explicitly guarantee equal rights for men and women. The 14th Amendment, created to ensure freed slaves equality, is often interpreted as also including equal rights for women—but it hasn’t been and still isn’t always interpreted this way. The amendment was ratified in 1868, but it wasn’t until 70 years later that women won the right to vote and not until 1971—almost a hundred years after ratification—that the 14th Amendment was applied against sex discrimination in Reed v. Reed. The 14th Amendment does not provide the same uniform protections that the ERA would, and its ambiguity endangers women’s rights. The late Justice Antonin Scalia said explicitly that the Constitution does not prohibit sex discrimination. He applied this specifically to the 14th Amendment, saying, “Nobody thought it was directed against sex discrimination.”
The ERA would defend advancements in women’s rights from such ambiguity in judicial interpretation and changes in legislation. While there are rights for women protected under individual laws, such as Title IX, the Equal Pay Act, etc., these could just as easily be reversed. Only by enshrining these rights in the Constitution will cases on sex discrimination be subject to strict scrutiny, the highest level of judicial review. This would shift the burden of proof to those charged with discrimination, and it would heighten the level of justification, making it equal to the level applied to cases related to race and religion.
Both CEDAW and the ERA remain viable options for women in the United States. Ratification of CEDAW would require the support of 66 senators, and there are two possible strategies for ratification of the ERA—restarting the traditional amendment process or extending the previous deadline to gain the support of the two additional states needed for ratification. In the meantime, progress has been made on both CEDAW and the ERA at the local level, with a Cities for CEDAW movement growing and many states adopting versions of the ERA in their constitutions. In a political climate where women’s rights are increasingly under threat, we should not leave them vulnerable to changes in legislation or judicial interpretation. It’s time that the United States justified the majority of Americans’ belief that women’s rights are guaranteed by making it true.