Why Title VII and the 14th Amendment Aren't Enough.

As a civil rights attorney, I am very familiar with the Constitution. I examine and work within its parameters every day. However, I find the silence in our Constitution regarding the topic of women’s equality baffling at best. Many people throughout the history of our nation have tried to rectify this situation. While they’ve ignited a firestorm of debate centered around the Equal Rights Amendment -- or lack thereof -- the status of women in regard to our Constitution remains murky.

Opponents to the ERA often argue the 14th Amendment and Title VII of the Civil Rights Amendment make ratifying the ERA unnecessary. This narrative has been cited repeatedly by many, but it is unequivocally false.  

Women are not guaranteed equal rights in our country. It is not explicitly stated in the Constitution, members of our Supreme Court have literally said the 14th Amendment does not prohibit discrimination based on sex, and Title VII, just a law, has been interpreted into having no teeth and can easily be undone if those in charge lack the political will to protect it.

This makes women’s equality vulnerable at best. The failure to ratify the ERA leaves women with a grabbag of bits and pieces of various amendments and laws, leaving their perceived rights open to the varied interpretation of a government mostly comprised of men -- and often very ideologically extreme men at that.

This lack of representation forces women to, instead, rely on their elected officials for inclusion and protection. But if the current sexual harassment crisis is any indicator, many of those elected officials think of women as objects, even at times as prey, rather than human beings to be treated equally.

And, as history shows, relying on the goodwill of politicians and judges to protect Title VII and to interpret the 14th Amendment in favor of women is not a safe bet.

For example, ERA opponents claim Title VII already provides for gender equality in the workplace, and, hypothetically, they are correct. However, in reality, Title VII offers little assurance. Case in point, under Title VII, the plaintiff has the burden of proof -- she must prove to the courts she was the victim of wage discrimination because of her gender. But that discrimination often takes years to discover. Then, after it has been discovered, it can be time consuming and very costly to prove. I mean, how many workers have the money to take on massive corporations like Walmart and its army of lawyers?

Further, Title VII is ever-changing: the law as it is interpreted today, may not be the law as it is interpreted tomorrow. As the battles over laws and regulations like the Affordable Care Act, the Paris Climate Accords, the Wage Data Rule, Net Neutrality and tax reform prove, Congress often chooses to protect its own agenda by gutting anything standing in its way and that could include a pesky little law like Title VII.

As far as the 14th Amendment is concerned, it only takes one look at the political rhetoric being spread to see how many male politicians feel about women’s rights and women in general. For example, former Texas Gubernatorial Candidate Clayton William had this to say: “Rape is kinda like the weather. If it is inevitable, relax and enjoy it.” Or from former Presidential Candidate Rick Santorum who said rape victims “should make the best of a bad situation.” Perfect examples of why sexual harassment and rape culture are alive and well today. But couple that with an underlying belief that the Constitution does not apply to gender based discrimination as former Supreme Court Justice Antonin Scalia stated publicly and you can see how even the 14th Amendment doesn’t really protect women. Here is what Scalia said:

“...Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that…”

While the late Justice Scalia no longers sits on the bench, his particular brand of Strict Constitutionalism is not unique. Trump-appointee, Justice Neil Gorsuch, with his record of voting in favor of big corporations like Hobby Lobby and against women, might prove to be even more damaging than Justice Scalia.

In this nation, the headlines are dominated by stories of sexual harassment and assault. As many as 42 million women and their children live below the poverty line. Discrimination is rampant. Income inequality is a major problem, costing our economy (that’s women and men) millions of dollars every year -- $176 million in Wichita alone . So, when we claim to be the beacon of democracy with liberty and justice for all, leaving 51 percent of the nation’s citizenry unprotected is unfathomable.

Gender equality is more than the 24 words of the ERA being put to paper. Gender equality is mandatory for meeting the challenges of reducing poverty, growing the economy and creating a government that is truly of the people, for the people, by the people. Also, it is important to note, gender equality isn’t about taking rights away from men, but extending those same right to women. As Susan B. Anthony said, “Men, their rights, and nothing more; women, their rights, and nothing less.”  

The ERA won’t fix all of our problems. Sexism and patriarchy are nearly ingrained into our society. But it is a giant leap in the right direction. I mean, how can we begin to right the wrongs of decades long pass when women still, in 2017, aren’t recognized by our Constitution? How can we end the good ol’ boys clubs, stop the pervasiveness of rape culture, eliminate domestic violence and eradicate human trafficking when we have failed to summon up the political will to include “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex” in the Constitution?

We simply cannot rely on narrative that Title VII and the 14th Amendment protect women’s rights and offer gender equality. We must continue the fight started all those years ago by Alice Paul and the other suffragists. We must finally pass the ERA.

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