“There Were No Founding Mothers”: Reimagining Constitutional Equality

Efforts to ratify the Equal Rights Amendment (ERA) have resurged due to fourth-wave feminism and the #MeToo movement’s exposure of widespread sexual harassment and abuse; Women’s Marches protesting Donald Trump’s 2016 presidential election; and the U.S. Supreme Court’s recent gutting of reproductive rights and affirmative action. For the first time in nearly forty years, three new states have ratified the ERA. But there are several reasons to pause and reconsider focusing efforts on ratifying the ERA. Ongoing litigation surrounding states’ recent ratification of the amendment shows the legal uncertainties in the procedures for ratifying constitutional amendments and the ERA in particular. More importantly for this Note, the ERA’s substance—written and rewritten in the last century—is insufficient to address ongoing inequities, especially for women of color. Advocates should instead concentrate efforts on writing a new amendment constitutionalizing equality aimed at rectifying the constitutional Founding Era’s treatment of people of color, women, and other subordinated groups.

Beginning anew is both desirable and necessary. As conservative states inch closer to achieving the requisite number of states to call for the United States’ first constitutional convention, advocates of women’s rights and equality need to be ready with their own vision of a free and equal society. Writing a new constitutional amendment would create a set of twenty-first-century framers whose vision of equality is better informed and equipped to ameliorate ongoing inequities and to remedy severe limits in current constitutional jurisprudence. Instead of being constrained by arcane doctrinal traditions, drafters should write a constitutional amendment that promotes substantive intersectional equality, protects historically subordinated groups, and prohibits intentional and unintentional discrimination by public and private actors alike.

Table of Contents Show

Introduction

“The Constitution they wrote was designed to protect the rights of white, male citizens. As there were no black Founding Fathers, there were no founding mothers — a great pity, on both counts. It is not too late to complete the work they left undone. Today, here, we should start to do so.”[1]

– Shirley Chisholm

“[T]he greatest gift of the Founding Fathers was not democracy, but the contagious idea of democracy, not a perfect Constitution, but one that could keep changing.”[2]

– Gloria Steinem

Over a century ago, suffragists Alice Paul and Crystal Eastman drafted the Equal Rights Amendment (ERA) to enshrine sex equality in the U.S. Constitution. Fierce feminist advocates including Martha Griffiths, Shirley Chisholm, Gloria Steinem, Pauli Murray, Ruth Bader Ginsburg, and many others organized around and rallied for the ERA for decades. Despite these efforts, the U.S. Constitution still does not expressly recognize equality on the basis of sex (or any other classification). It is the only major written constitution with such a glaring omission.[3] As a result, women’s rights under the U.S. Constitution have existed only parasitically to other rights, clinging to them for recognition: Sex discrimination continues to piggyback off race discrimination under the Fourteenth Amendment’s equal protection jurisprudence,[4] and, before Dobbs gutted them, abortion rights and reproductive autonomy[5] existed only impliedly as penumbras under substantive due process.[6] What would women’s rights look like if they stood up on their own? This Note aims to answer that question and to guide feminists and advocates in reclaiming meaningful constitutional equality.

First, this Note diagnoses a problem: Egregious sex inequality persists, and existing law is insufficient to remedy such inequality. Despite some recent progress in achieving sex equality in the absence of a constitutional guarantee, the status quo continues to underpay, exclude, discriminate, subordinate, and harm women, primarily women of color. This Note outlines some of these persistent inequities. In so doing, it measures sex inequality primarily by looking to the most marginalized women—those impacted by intersecting and compounding forms of discrimination.

This Note then analyzes how existing law and the ERA as written are incapable of ensuring equality and ameliorating these ongoing disparities. Sex equality’s constitutional footing under the Fourteenth Amendment is alarmingly unstable. The Supreme Court has eliminated Fourteenth Amendment claims arising out of discriminatory impact and made it difficult to show discriminatory intent. The Court has also limited Congress’s ability to make laws remedying inequality. Federal antidiscrimination laws are limited in reach, and state antidiscrimination laws vary significantly by state, creating a patchwork of varying protections.

The ERA, meanwhile, is relatively vague and would only have the meaning and reach its interpreters grant it. It also lacks an intersectional lens, which is crucial for addressing compounding inequality that uniquely impacts women of color, who, as described by civil rights pioneer Pauli Murray, have been “doubly victimized by the twin immoralities of racial and sexual bias.”[7] Additionally, the ERA contains an enforcement clause similar to that of the Fourteenth Amendment, so Congress may not have authority to pass meaningful legislation ensuring women’s equality. Finally, if the ERA brought sex discrimination within strict scrutiny analysis, the Court may impose a sex-blind standard much like its recent imposition of constitutional colorblindness in the race-based affirmative action context, which could prevent affirmative action programs and other efforts to achieve equality for women and LGBTQ+ people.

Second, this Note offers a solution to this problem: Instead of trying to revive an amendment written a century ago, advocates and scholars—twenty-first century Founding Mothers—have an opportunity to imagine a new constitutional amendment that rectifies current doctrinal inadequacies and more meaningfully enshrines principles of dignity and equality for the historically subordinated groups that the Founding Fathers abandoned.

This Note proposes several recommendations for drafting a more robust constitutional amendment. The new amendment must be sufficiently specific to attempt to constrain and guide interpreting judges, lest it be fraught with the same vagueness issues as the ERA. For example, an amendment that grants general sex equality and also explicitly bans discrimination against subordinated groups would make it difficult for courts to impose a formalistic sex-blind standard. An amendment that expressly adopts an intersectional approach would recognize and protect against compounding harms on the basis of race, sex, and other intersecting identities. To achieve meaningful equal opportunity and outcome, the amendment should contain language affirming women’s rights to equal access, rather than simply granting women freedom from government discrimination. It should also prohibit laws and practices with discriminatory impacts, as well as intent. Like the Thirteenth Amendment, the amendment should reach private action, where much sex discrimination occurs. An amendment that abrogates state sovereign immunity and provides protection against discrimination by individual government officers to overcome officer immunity would aim to ensure harms committed by government actors do not go unremedied. And including a clear and robust enforcement clause granting Congress power to enact laws enforcing the amendment’s substantive equality guarantees would give the amendment real teeth. Together, these recommendations would ensure that subordinated classes’ dignity and equality are finally expressly affirmed.

Given that several Justices on the current Supreme Court, much of the right-leaning federal judiciary, and many state courts have proven hostile to efforts to protect and expand women’s rights,[8] some may rightfully ask: Why a constitutional amendment, which necessarily yields the power of interpretation and application to judges?[9]

This Note argues that drafting a new constitutional amendment is necessary given the critical limitations of both existing constitutional and statutory law in addressing various forms of inequality, including pay disparity, inequality in the economy, healthcare, education, and housing, and gender-based violence. An amendment with sufficiently clear and specific language and with twenty-first century founders has the capacity to constrain even textualist and originalist jurists. Textualist jurists applying the text’s “plain meaning” would arguably be compelled to apply the amendment as written.[10] Since the amendment would be drafted and proposed in the twenty-first century, originalist jurists committed to applying a meaning understood at the provision’s founding would have to look to the intent and understanding of a new set of modern framers. Originalists, then, would no longer be able to relegate women’s rights and status to that of the late 1700s or 1865, when women did not have even the right to vote, much less a proverbial seat at the table where constitutional drafting took place.

This Note is more than just an idealistic thought exercise. As of the time of writing, twenty-eight states have heeded conservative calls to vote in favor of holding a constitutional convention under Article V of the Constitution, leaving just six states until the requisite thirty-four will trigger the nation’s first state-led constitutional convention.[11] Several states are actively considering calling for an Article V convention in 2025.[12] These organizers will be prepared to present their interests and their vision. Those who believe the Constitution has failed to live up to its principles of justice and equality for all must not only be ready to respond, but they should also be organizing around an alternative vision for the future of this country.[13] They must begin imagining what the Constitution can and should say to create the society they want to live in. They must be prepared to propose a new, more inclusive Constitution.

This Note proceeds in three parts. Part I explains the need for a constitutional amendment enshrining equality to address persistent disparities affecting women—primarily women of color—and other similarly marginalized groups across virtually every aspect of modern society. It then analyzes how existing constitutional jurisprudence and statutory antidiscrimination law are inadequate to ameliorate these ongoing disparities and meaningfully uphold equality. Part II examines the ERA, identifying its primary benefits and limitations. Finally, Part III addresses the limitations of existing constitutional law and the ERA identified in Parts I and II and reimagines a new constitutional amendment. It identifies key considerations and recommendations for twenty-first century drafters, drawing on frameworks and amendments proposed by constitutional law scholars and existing state and international constitutions.

I. The Need for a Constitutional Amendment Enshrining Equality

Scrutiny of sex inequality in the United States has resurged in recent years, inspired in part by the #MeToo movement and fourth-wave feminism. Despite this resurgence, inequities persist in nearly every facet of a woman’s life. Part I.A explores some of these inequities, demonstrating why constitutionalizing sex equality is still vital and outlining some of the disparities that an amendment should aim to redress. Part I.B then explores why Fourteenth Amendment jurisprudence and statutory laws fall short of remediating these inequities.

A.     Sex Inequality in the United States

In the early 1920s, suffragist leader Alice Paul’s National Women’s Party identified over three hundred laws that denied women equality based on sex.[14] To address all of them at once, she proposed the Equal Rights Amendment, which would broadly guarantee equality to women in areas including employment, property, jury duty, and child custody.[15] She hoped that enshrining “the principle of gender equality in our founding charter” would affirm women’s equality.[16] Over one hundred years later, women and other marginalized groups still have no such express constitutional protection, leaving them exposed to harm and victimization by private and government actors alike. Part I.A explores the status of gender equality today by outlining the gaping disparities[17] in pay and employment, healthcare, housing, education, access to food, and sexual violence. While not exhaustive, these examples are meant to highlight some key aspects of modern life where sex disparities persist.

Part I.A will ultimately demonstrate how the status quo continues to underpay, exclude, discriminate, subordinate, and harm women, primarily women of color. It will also illustrate why these issues, many of the same issues that animated the Equal Rights Amendment in 1923,[18] necessitate a new constitutional amendment to achieve meaningful equality in the twenty-first century.

1.     Discrimination and Inequality

a.     In Employment

Despite women’s increasing share in the labor force and the passage of federal legislation[19] aimed at addressing workplace inequality, women are still systemically underpaid, discriminated against based on their sex (including pregnancy and gender identity) and race, and underrepresented in leadership positions. In 2023, full-time, year-round working women in the United States earned, on average, 83 percent of what their male counterparts earned,[20] a disparity that experts say owes to gender roles and sex discrimination.[21] And while men’s earnings increase by 6 percent when they become fathers, each child a woman has shaves 4 percent off her hourly wage.[22] At the current rate of progress, without intervention, this gender pay gap will not close until 2088.[23]

Pay equity laws have particularly failed women of color, whose earnings lag behind white men and women.[24] Despite Black women having the highest rate of participation in the labor force,[25] in 2022 they earned just 70 percent as much as white men.[26] Latinx women earned even less—only 65 percent as much as white men.[27] Due to this pay inequity, a woman starting her career today will lose, over the course of a forty-year career, a staggering $406,280 to the wage gap; Black and Native American women will lose nearly $1 million; and Latinx women will face lifetime losses totaling over $1.1 million.[28] Despite federal and state employment antidiscrimination laws, employers continue to discriminate against various racial and ethnic groups, as well as against LGBTQ+ workers and workers with disabilities, in hiring[29] even when controlling for educational differences.[30]

Government,[31] large enterprises, and other institutions continue to exclude women from managerial and decision-making positions.[32] The higher up the income distribution, the fewer women are represented, with only every third income earner being a woman in the top 10 percent and only every fifth or tenth earner being a woman in the top 0.1 percent.[33] As of 2023, women only comprise 44.4 percent of senior and middle management positions,[34] and, among them, white women are 4.5 times more likely than Black women to hold such positions.[35] Thus women, especially women of color, are persistently relegated to low-wage, entry-level jobs.[36]

b.     In Healthcare

Decades of research has documented widespread sex bias in United States healthcare access and administration.[37] Unequal access and treatment disproportionately impacts Black women, who “fared the worst with respect to emergency room visits and unmet need compared to other groups.”[38] And although the Affordable Care Act’s (ACA) insurance expansion provisions increased women’s insurance coverage overall,[39] low-income women, women of color, Native women, and immigrant women are disproportionately uninsured.[40] This makes care inaccessible and subjects these groups to a lower standard of care when they do get treated, resulting in poorer health outcomes.[41] LGBTQ+ and gender-nonconforming people also face significant discrimination and unequal access in healthcare, leading to higher health risks than cisgender patients.[42] 

Women of color are also disproportionately subject to unequal access and sex bias in reproductive healthcare.[43] Data show that racial-ethnic minorities are disparately impacted by sexually transmitted diseases, reproductive cancers, maternal mortality, and unequal access to contraceptives, Pap tests, and mammograms.[44] Notwithstanding the ACA’s nondiscrimination mandate,[45] maternal mortality rates have increased most significantly for Black and Latinx women, with Black women experiencing maternal mortality at 2.9 times the rate of white women in 2020.[46] And women of color—particularly Black women—are more likely to die giving birth, need lifesaving abortions, and suffer higher rates of severe maternal complications. As a result, they bear the most significant burdens imposed by abortion restrictions, which are increasing in many (red) states following the Court’s overturn of Roe v. Wade.[47] Additionally, minority women—particularly immigrant and Latinx women—are still being forcibly sterilized in Immigration and Customs Enforcement detention facilities[48] and prisons,[49] with hysterectomies and salpingectomies being performed on them against their will.

c.      In Housing, Education, Food Security, and Beyond

Sex-based housing discrimination is another persistent problem. Even with the Fair Housing Act of 1968, women of color, women with disabilities, and LGBTQ+ people are subject to discriminatory housing policies and practices.[50] And while homeownership rates among women have increased in the last two decades, women are still less likely to own a home than men, and women of color are less likely to own a home than white women.[51] Even when women of color and those with intersectional identities—race, gender identity and sexual orientation, disability, and immigration status—do own their homes, they are more likely than white female homeowners to experience extreme poverty,[52] eviction,[53] and predatory lending practices.[54] Such housing instability can harm women’s health,[55] worsen the struggles of survivors of domestic violence, sexual assault, and stalking,[56] and increase the risk of being unhoused.[57]

Despite more women earning college degrees than men,[58] women’s later earnings remain stuck,[59] and women of color continue to lag behind white women in college enrollment, graduation rates, and graduate degree opportunities.[60] Additionally, following the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA),[61] universities are removing diversity statements and other admission criteria “aimed at widening academia to those who have historically been excluded, particularly women and racial minority groups.”[62]

Sex discrimination and sexual harassment in education persists too, disproportionately impacting women of color and LGBTQ+ students and faculty. Approximately 26 percent of all female undergraduate students report having experienced sexual assault.[63] Women of color continue to face obstacles to participation in college sports,[64] and Black girls in particular are subject to harsher discipline in school than their white counterparts.[65] LGBTQ+ students’, and particularly transgender women’s, protection from sex discrimination in schools under Title IX is especially porous since their rights are subject to ever-changing administrative guidelines.[66] Furthermore, in 2020, salaries for full-time women faculty members were approximately 81.2 percent of men’s, and women of color are disproportionately underrepresented among full-time faculty.[67]

Women—especially poor women and women of color—also continue to experience food insecurity. Over the past twenty years, Black, Latinx,[68] and Native American[69] families have consistently been at least twice as likely as white households to experience food insecurity, due in part to disparate and racialized access to food.[70] Black and Latinx women are approximately three times more likely than white men and about two times more likely than white women to lack sufficient food.[71] Such “[i]nadequate access to food correlates with a wide range of other adverse life experiences, such as investigations for possible abuse or neglect of children,”[72] increased risk for multiple health conditions such as diabetes, obesity, heart disease, and mental health disorders,[73] and increased risk of poverty and unemployment.[74]

2.     Gender-Based Violence

While violence against women is as old as time, the #MeToo movement shined a light on its persistence today.[75] Gender-based violence is both indiscriminate, as it affects women, trans women, and nonbinary persons of all classes, colors, and abilities,[76] and disparate, as it affects marginalized communities and those with intersectional[77] identities the most.[78]

The statistics are alarming: In the United States, “one in three girls is a victim of physical, verbal, or emotional abuse[,]”[79] one in four women will experience domestic violence,[80] and on average, more than three women are murdered by an intimate partner every day.[81] Gender-based violence is not just confined to private spaces or relationships either: Two-thirds of all women have been harassed on the street, with 23 percent having been sexually touched, 20 percent having been followed, and 9 percent having been sexually coerced.[82] Police[83] and border agents,[84] government officials,[85] judges,[86] prison wardens and guards,[87] and other public actors perpetuate such violence as well—often with impunity.[88]

While gender-based violence occurs across all races, ages, classes, and abilities, it disproportionately impacts women of color (particularly Native women[89]), women with disabilities,[90] unhoused women,[91] trans women,[92] and trans youth of color.[93] Indeed, Black women are disproportionately at risk of sexual violence[94] and experience intimate partner violence at a rate 35 percent higher than that of white women and twenty-two times that of women of all other races.[95] Black women and girls are also more likely than any other group of women to be killed by the police,[96] having historically been victims of police brutality in the United States.[97] And while Black girls are overrepresented among sex trafficking victims and survivors, they are often not seen as victims; rather, they are arrested on prostitution charges and punished as perpetrators.[98] Immigrants and non-citizens are also at especially high risk of abuse and sexual violence.[99] “Abuse rates among immigrant women are as high as 49.8%,” nearly three times the national average,[100] as immigrant survivors face unique forms of abuse that citizen survivors do not.[101]

B.     Legal Limitations

The law can be an effective tool for ameliorating sex-based discrimination and disparities. Thanks to Justice Ruth Bader Ginsburg’s[102] leadership in advancing women’s rights in the courts in the 1970s, there is some constitutional protection against sex discrimination,[103] with sex-based classifications[104] meriting heightened scrutiny under the Equal Protection Clause.[105] And legislation like Title VII, the Pregnancy Discrimination Act of 1978, and Title IX have undoubtedly provided women greater protection and advancement in the workplace and in education.[106] However, significant legal gaps and limitations remain in both constitutional and statutory law. Part I.B outlines these shortcomings, including the undesirable doctrinal frameworks that judges have created in interpreting the Fourteenth Amendment and that legislators have made in drafting statutes. These legal and doctrinal limitations demonstrate the need for a more robust constitutional provision enshrining equality to remedy the inequities persistent in twenty-first-century U.S. society.

1.     The Fourteenth Amendment’s Limitations

The Fourteenth Amendment,[107] as interpreted by courts, is insufficient to remedy the gender disparities described in the Part I.A. First, the ground on which sex stands as a protected class under the Equal Protection Clause is unstable. Second, legal frameworks embedded in Fourteenth Amendment jurisprudence, namely the discriminatory intent requirement and tiers of scrutiny, are inadequate and undesirable. Last, the Supreme Court’s Fourteenth Amendment jurisprudence has sharply limited Congress’s power to make laws remedying inequality under Section Five of the amendment.

a.     The Unstable Ground of Sex as a Protected Class

The Fourteenth Amendment was passed as a direct response to slavery. It was meant to remedy the plight of African Americans by bringing the Constitution back in line with the fundamental principle of equality set out in the Declaration of Independence.[108] “Nothing in [the amendment’s Equal Protection Clause], however, appeared at its ratification to contemplate equality for women.”[109] In fact, when Susan B. Anthony was arrested and convicted for voting in the 1872 presidential election, four years after the Fourteenth Amendment was ratified, the judge expressly rejected her Fourteenth Amendment argument, ruling that the amendment did not apply to her as a woman.[110] Thus, “[d]iscrimination based on sex and gender, to the limited extent it has been constitutionally prohibited, has been recognized only very recently and merely by interpretation—not originally, textually, or historically—making its protection particularly thin and vulnerable.”[111]

The Equal Protection Clause’s interpreted prohibition on sex discrimination is especially vulnerable given the rise of originalism as a method of constitutional interpretation.[112] For an originalist, the meaning of the Constitution’s provisions are fixed at the time of ratification.[113] “Since women were not equal to men under the law in 1868, and since the framers of the 14th Amendment did not advance gender equality as one of its purposes,”[114] sex equality under the Fourteenth Amendment is unstable, at best, under an originalist interpretation. Indeed, Justice Scalia, “the leading judicial theorist and advocate of originalism of his era,”[115] said in an interview:

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. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.[116]

Judge Robert Bork similarly espoused that “because the framers of the Fourteenth Amendment were not concerned with sex-based discrimination,” there was “no place for women in the [E]qual [P]rotection [C]lause.”[117] He in fact, maintained that courts are altogether not the proper places to adjudicate sex discrimination cases, only race-based inequality cases.[118]

Decades of precedent and broad consensus confirm that the Equal Protection Clause does protect against sex discrimination. Nonetheless, originalists and conservative legal thinkers such as Justice Scalia and Judge Bork rejected this interpretation, claiming that “such arguments are specious because they do not reflect the original intent of the nation’s founders.”[119] Under this extreme, regressive interpretation of the Fourteenth Amendment, sex as a protected class is vulnerable to being rolled back.[120] That this is the purported originalist interpretation of the Fourteenth Amendment is concerning considering many jurists on the federal judiciary—and several Supreme Court Justices—adhere to an originalist theory of constitutional interpretation.[121]

Notwithstanding the originalist critique, recognizing sex as a protected class solely by analogizing to race is replete with issues; it also ties the fate of sex-based equal protection jurisprudence to that of race, which is currently under attack by the Court. The Supreme Court first read guarantees of sex equality into the Equal Protection Clause in Reed v. Reed in 1971, persuaded by Ginsburg and other women’s rights advocates, who analogized sex discrimination to race discrimination.[122] But “in adapting the law of race discrimination for sex discrimination, the Court faced certain analogical crises,”[123] a confusion[124] revealed six years later by Justice Powell in Regents of the University of California v. Bakke: “[T]he Court has never viewed [gender-based classifications] as inherently suspect or as comparable to racial or ethnic classifications for the purpose of equal protection analysis.”[125] With both gender and race equality’s “roots in the constitutional landscape now weakened,” each has “been cast into treacherous seas—with gender hanging onto race like a castaway clinging to a slender piece of doctrinal driftwood.”[126]

Of course, any constitutional protection against arbitrary sex discrimination under the Equal Protection Clause is preferrable to none, and textual and common-sense counterarguments discount an originalist argument that the Fourteenth Amendment does not protect against sex discrimination. The Fourteenth Amendment’s text does not specifically mention race or limit its protection to race-based discrimination, but instead simply states that the government shall not deny “any person” the equal protection of the laws.[127] Some have argued that this language is intentionally broad, and “[c]learly women fall within the category of ‘any person.’”[128] And given that the text was written at a high level of generality, it was arguably supposed to evolve and expand, providing greater protections than originally conceived.[129]

But “[t]he lack of explicit constitutional text mandating women’s equality forced each evolving statement of [constitutional sex equality] to reveal its dependency on precedent.”[130] And as the Court’s decision in Dobbs v. Jackson Women’s Health Organization[131] shows, precedent—no matter how long-established—may not overcome an originalist’s[132] deference to a Second Founding era’s understanding of Fourteenth Amendment Equal Protection as applying mainly, if not exclusively, to race discrimination.[133]

b.     The Deficiencies of the Fourteenth Amendment’s Embedded Legal Frameworks

Despite the fragile status of sex as a protected class under the Constitution, plaintiffs continue to bring sex discrimination claims under the only available constitutional clause: the Equal Protection Clause of the Fourteenth Amendment. To do so, plaintiffs must prove (1) that the government intended to discriminate[134] (“the discriminatory intent requirement”) and (2) that the sex classification is not substantially related to an important government interest[135] (so-called “intermediate scrutiny”). These judicially created doctrinal hurdles “together stabilize rather than dismantle the raced and gendered social order”[136] and stymie efforts to achieve meaningful equality.[137]

 i.      The Discriminatory Intent Requirement

The Supreme Court first required that covert discrimination having disparate effects on racial groups must be proven to have been intentional to be unconstitutional in Washington v. Davis.[138] Under the Court’s holding, an “overwhelmingly disparate injury inflicted on a disadvantaged racial group” was insufficient to trigger equal protection concerns, “even in the face of utterly predictable and proven outcomes.”[139] Rather, “[o]nly actions taken with a conscious desire to actively harm a vulnerable group would be held illegal.”[140]

There are two fundamental problems with requiring proof of intentional discrimination for equal protection challenges. First, it distorts the goal of equal protection, which should be focused on both the intent and outcomes of government actions.[141] Second, requiring discriminatory intent ignores the reality and manifestations of unconscious bias.[142] Legislators or government officials will rarely reveal an overt discriminatory purpose, and therefore many laws with both a discriminatory purpose and impact will be upheld “simply because of evidentiary problems inherent in requiring proof of such a purpose.”[143]

Furthermore, the Court’s definition of discriminatory intent is subjective, manipulable, and very difficult to prove.[144] Even when statistical evidence demonstrates discrimination, the Court has declared that such evidence may be insufficient, concluding that “proving broad sociological propositions by statistics is a dubious business.”[145] Moreover, since discrimination depends on the accused discriminators’ state of mind, evidence of discrimination is largely within their control, making discrimination “easy to exercise, easy to deny, and almost impossible to prove.”[146]

The Court nevertheless doubled down on the intent requirement, applying it to sex discrimination claims in Personnel Administrator of Massachusetts v. Feeney.[147] There, the Court held that a preference for veterans in employment that “operate[d] overwhelmingly to the advantage of males” did not unconstitutionally deny women equal protection because there was no proof that the law was enacted “for the purpose of discriminating against women.”[148] As scholars Catharine MacKinnon and Kimberlé Crenshaw have pointed out:

Feeney spelled out with devastating clarity that decision-makers could comfortably rest disparity-producing preferences on the built-in inequalities created by myriad institutions—so long as they could plausibly deny a specific intent to harm women. By depriving women of the right to challenge disadvantages built on preferences for men—even those made possible by the near-complete exclusion of women by law or policy—the Court largely reduced the Equal Protection Clause to a minimalist intervention against some explicitly discriminatory articulations termed “facial.”[149]

By holding that the undisputed gender-based disparate outcome did not implicate Equal Protection absent a specific discriminatory intent,[150] Feeney made “the inequality [that] these practices imposed difficult or impossible to expose, contest, and change by law.”[151]

Not only is discriminatory intent difficult for litigants to prove, but the requirement has caused confusion in lower federal courts,[152] which have used “myriad approaches” in applying it.[153] Worse, scholars have identified that it has “hidden regressive effects as between different plaintiffs and between different defendants,”[154] often “bar[ring] numerous plaintiffs from proving constitutional violations.”[155]

ii.      Ranking Sex Classifications Within the Tiers of Scrutiny

The second problem with current Equal Protection jurisprudence is having to place sex classifications within the tiers of scrutiny. Regardless of the applicable tier, eradicating harmful forms of sex discrimination while also establishing and upholding affirmative, remedial programs will be nearly impossible. While the Supreme Court upheld two laws in the 1970s benefitting women in the military and social security contexts,[156] it has yet to establish a defined test for analyzing sex-conscious affirmative action programs.[157] A circuit split currently exists regarding the level of scrutiny courts should apply to equal protection challenges of gender-based affirmative action programs in the employment context.[158]

Regardless of the standard courts apply to sex-conscious affirmative action policies designed to benefit women, courts operating under the hyper-formalistic tiers of scrutiny test do not inquire into whether a sex- or race-based classification is benign or invidious.[159] Instead, the Court has declared that the Equal Protection Clause must mean the same thing for everybody, “equating colorblindness and gender neutrality—so-called same treatment—with constitutional equality.”[160] The result is twofold: First, remedial laws designed to benefit historically marginalized protected classes, which necessarily draw distinctions, will likely be struck down as violating the Equal Protection Clause.[161] Second, “the more perfectly a distinction by law fits a distinction in society, the more ‘rational’—hence, less discriminatory—it is seen to be.”[162]

This “sex-blind” sex equality paradigm,[163] akin to the Court’s recent adoption and mandate of constitutional colorblindness,[164] severely threatens the realization of meaningful equality in this country, especially for women of color. A recent Sixth Circuit Court of Appeals case, Vitolo v. Guzman,[165] is illustrative. In March 2021, President Biden signed into law a $1.9 trillion COVID-19 stimulus package[166] that targeted economic sectors disproportionately impacted by the pandemic. The package provided “a one-off monetary lifeline aimed at ameliorating short-term economic devastation.”[167] Congress built a twenty-one-day fast track into the aid application for restaurant owners hit hardest by the pandemic: women, veterans, and “socially and economically disadvantaged individuals,” including people of color.[168] This meant that although all impacted restaurant owners could apply for aid during the application period, applications from certain groups, including women and people of color, would be processed first.[169]

Antonio Vitolo, a white male restaurant owner, challenged the fast-track application process, claiming it discriminated against him on the basis of race and sex.[170] Notwithstanding substantial evidence showing that women and people of color who owned businesses disproportionately suffered economic disadvantage during the COVID-19 pandemic,[171] the court—applying strict scrutiny for the race classification and intermediate scrutiny for the sex classification—ruled for Vitolo.[172] Regarding the prioritization of applicants of color, the court determined that the government did not have a compelling interest because “[t]he broad statistical disparities cited by the government are not enough . . . when it comes to general social disparities, there are simply too many variables to support inferences of intentional discrimination.”[173] Regarding the package’s prioritization of women applicants, the court again declared that “general claims of societal discrimination are not enough.”[174]

Vitolo demonstrates how the existing constitutional framework for analyzing challenges to race- or sex-based classifications has undermined governmental efforts to remedy historic and perpetual inequality. While the Biden Administration’s package attempted to “remedy the systemic inequality that business owners of color, including women, faced at the height of the pandemic, the government did not have a constitutional mechanism to shore up its claims.”[175]

c.      The Court Has Curtailed Congress’s Ability to Make Laws Remedying Inequality Under Section Five of the Fourteenth Amendment

In addition to the problems with a discriminatory intent requirement and placing sex classifications within the tiers of scrutiny, the Court has gutted Congress’s ability to remedy ongoing inequities by making laws under Section Five of the Fourteenth Amendment. Section Five of the Fourteenth Amendment[176]—referred to as the Enforcement Clause—vests Congress with the authority to adopt “appropriate” legislation to enforce the amendment and to correct laws that conflict with the amendment’s principles.[177] In recent decades, the Supreme Court has narrowed Congress’s power to legislate under the Enforcement Clause,[178] including its ability to reach sex discrimination in state law.[179] The Court has imposed two key limits: Congress may only use its enforcement power to provide for rights already recognized by courts, and Congress may not regulate private conduct.

First, the Court held in Oregon v. Mitchell that Congress cannot use its power under Section Five of the Fourteenth Amendment to expand rights, but rather only to provide for rights already recognized by the courts.[180] Justice Black, writing for a plurality, declared that while the “framers of the Civil War Amendments intended to deny to the States the power to discriminate against persons on account of their race . . . [t]he Fourteenth Amendment was surely not intended to make every discrimination between groups of people a constitutional denial of equal protection. Nor . . . intended to permit Congress to prohibit every discrimination between groups of people.”[181] The Court further held in City of Boerne v. Flores that Section Five does not empower Congress to create new rights or expand the scope of rights, and that even laws designed to prevent or remedy rights that the Supreme Court has recognized must be “proportionat[e]” and “congruen[t]” to the scope of the constitutional violations.[182] Taken together, Mitchell and City of Boerne have left Congress the power to enact “little more than legislation that prohibits conduct that is already unconstitutional, or very close to it.”[183]

The second key limit the Court placed on Congress’s power to legislate pursuant to Section Five is that Congress may not regulate private conduct, but only the actions of state and local governments.[184] The Court reached this conclusion in United States v. Morrison, a case involving provisions of the Violence Against Women Act designed to provide victims of sexual assault and other forms of gender-based violence a remedy in federal court.[185] Despite a demonstration in the legislative record that states were systematically depriving such victims of a remedy in their own judicial systems, the Court held that the provision imposing individual civil liability failed because it did not prohibit official misconduct as required by the state action doctrine.[186] Thus, Congress’s “power to regulate the broad range of dynamics that abridge women’s equal status”[187] does not extend to the regulation of private conduct.

2.     Statutory Limitations

In addition to the deficiencies in constitutional jurisprudence, federal and state statutes aimed at achieving sex equality are insufficient to ensure full equality. Despite the laudable protections Congress has afforded vulnerable groups through federal antidiscrimination laws including Title VII of the Civil Rights Act of 1964, the Equal Pay Act, and the Americans with Disabilities Act, “[t]he legal framework for addressing sex inequality is a patchwork quilt of legislation that is full of holes—some that derive from narrow court interpretation and others from legal exemption.”[188] The persistent disparities recounted in Part I.A evince the insufficiency of these laws in achieving meaningful equality. Additionally, such laws are vulnerable to the ever-shifting whims of the political branches—a simple congressional majority can amend or repeal antidiscrimination laws, and the executive branch can negligently enforce such laws.[189]

Each of these laws also contains limitations either in its text, scope, or as applied by courts. For example, Title VII, which prohibits discrimination in employment based on protected characteristics, only applies to employers with fifteen or more employees,[190] leaving employees of small businesses, or even independent contractors[191]—who make up an increasingly large share of workers[192]—without statutory protection. Title VII also does not apply to the federal judiciary, leaving its thirty-thousand employees[193] unable to sue and seek damages for harm to their careers, reputations, and earning potential.[194]

Alarmingly, many courts have also not recognized intersectional or multi-dimensional discrimination claims—as in discrimination against an employee in more than one protected class—under Title VII, leaving women of color and other employees at intersectional identities without adequate redress.[195] Instead, these courts have ruled that plaintiffs could assert separate claims for race or sex discrimination, but not a combination of both, lest they create a new subgroup who would be entitled to a “super-remedy” that goes beyond Title VII’s intended reach.[196] Even in courts that recognize intersectional discrimination claims, scholars have found that “‘complex discrimination’ claimants fare even worse than other employment discrimination plaintiffs, facing both structural and ideological barriers to recognition and redress.”[197]

Another example of the court-imposed limitations of federal statutes is the “factor other than sex” loophole in the Equal Pay Act of 1963. While requiring that men and women receive equal pay for equal work at the same business, the Act includes an affirmative defense framework allowing employers to advance specific defenses to justify a pay disparity.[198] Courts have interpreted one defense, called the “factor other than sex” defense,[199] so broadly that it has “effectively become a loophole that allows some employers to successfully defend discriminatory pay practices that sound impartial or gender neutral on the surface.”[200]

State laws, especially in progressive states, sometimes help close equality gaps—but they only go so far. State domestic violence and sexual assault laws, for example, have “virtually never been held to equality standards in their design or effect.”[201] Statutory protections against sex discrimination and inequality also vary significantly by state,[202] which can impact the state’s gender pay gap. For example, one study compared Colorado and Washington’s gender pay gap after each state enacted a pay transparency law.[203] Despite having similarly progressive pay equity laws, Colorado’s gender pay gap decreased significantly more than Washington’s, highlighting the variable impact of state and local laws.[204]

The insufficiency of relying on state laws to address women’s unequal status in society is also demonstrated by the regressive abortion bans that states have enacted after the Court decided in Dobbs v. Jackson Women’s Health Organization to “give the issue back to the states.”[205] As of the time of writing, thirty states have imposed some restrictions on abortion, with over half having imposed either “very restrictive”[206] policies—meaning the state has multiple restrictions and an early gestational age ban—or “most restrictive”[207] abortion policies—meaning the state has either a total ban on abortion or an early gestational age ban and other restrictions making it extremely difficult to access care. Many states without such bans still have abortion regulations that create significant barriers for women seeking care.[208] Such abortion bans put women’s very lives and fertility in danger,[209] deny their bodily autonomy,[210] and undermine their full and equal participation in society.[211] Some state legislatures have even attempted to subvert the democratic process by stripping state courts of jurisdiction over newly passed constitutional amendments protecting the right to abortion,[212] preventing voters from placing abortion initiatives on statewide ballots,[213] and requiring ballot initiatives to win a majority vote in congressional districts in addition to a simple statewide majority to ensure “the rights of the minority aren’t trampled on.”[214]

Family leave laws also vary widely by state. At the time of this writing, fifteen states and Washington D.C. provide paid spouse or partner leave, five grant workers leave to care for a partner—but only if the couple is in a legally recognized relationship—and thirty-two states lack partner leave laws entirely.[215] Similarly, only fifteen states and Washington D.C. provide paid parental leave, with five granting workers leave to care for a child only if the worker has a legal or biological relationship to the child. Thirty-one states have no parental leave law at all.[216]

Lastly, many states continue to lack laws protecting against sex discrimination, including sexual orientation and gender identity. Eighteen states have no explicit prohibition on discrimination based on sexual orientation or gender identity in housing;[217] twenty-one either do not ban discrimination in public accommodations or ban discrimination based on sexual orientation only;[218] and thirty-one do not ban discrimination in credit and lending, which would protect people from being unfairly denied credit and lending services, such as opening a bank and taking out a loan.[219]

If we want to achieve meaningful sex equality, we will not do so by relying on existing constitutional or statutory law. Rather, we must envision a new constitutional backdrop that reinforces expectations of dignity and full equality for all. A new constitutional provision would bolster women’s and LGBTQ+ people’s protection from discrimination, protection that is currently unstable under the Fourteenth Amendment. It could also provide a new doctrinal framework for mending the patchwork of existing federal and state antidiscrimination laws described in Part I.B. The ERA is a starting point, but it will not remedy all these deficiencies.

II. An Examination of the Current Equal Rights Amendment

Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3: This amendment shall take effect two years after the date of ratification.

– The Equal Rights Amendment

The ERA was first drafted over a century ago in 1923[220]—three years after the Nineteenth Amendment guaranteed women the right to vote—by suffragist leaders Alice Paul and Crystal Eastman.[221] It was rewritten in 1943, reflecting the current language.[222] The amendment was introduced in every session of Congress for fifty years[223] until finally, in 1972, the amendment passed both chambers of Congress with bipartisan support.[224] Congress sent the proposed ERA to the states for ratification with a seven-year deadline.[225] Congress voted to extend the ratification deadline by three years, but by the new 1982 deadline, only thirty-five of the thirty-eight requisite states had ratified the ERA.[226]

Though most activists and lawmakers accepted the ERA’s defeat after the expiration of its ratification deadline in 1982, there has been a recent resurgence of interest in the amendment.[227] In 2017, Nevada became the first state to ratify the amendment since 1977; in 2018, Illinois followed suit;[228] and in 2020, Virginia became the thirty-eighth and final state to ratify the ERA.[229] Whether these states’ ratifications actually mean the ERA will be adopted as the Twenty-Eighth Amendment, however, hinges on unsettled procedural questions.[230] And despite President Biden’s last-minute announcement on one of his final days in office that his administration believed the ERA had become part of the Constitution,[231] the Archivist of the United States has resolutely refused to publish the amendment.[232]

Instead of exploring the procedural and legal questions surrounding the ERA’s ratification,[233] this Note examines the ERA’s text and social impact as an example of what twenty-first century activists should and should not include in an equality amendment. The ERA is not controversial: 94 percent of Americans, including 90 percent of Republicans[234] and many Republican state legislators,[235] support the ERA.[236] Bipartisan support in Congress as recently as 2021[237] shows that gender equality “is not a partisan issue but one of universal human rights.”[238] The following sub-Parts identify some of the key benefits and problems with the ERA.

A.     Benefits

There are many reasons to celebrate the ERA. The Amendment’s language would have practical importance for sex equality under the Constitution and bring it in line with most countries’ constitutions. It could bolster protections against sex discrimination in areas including gender-based violence, employment, reproductive autonomy, and healthcare. The ERA also serves as a symbolic public message that women must no longer be subjugated or treated as second-class citizens. Finally, the ERA has been—and continues to be—a political catalyst, engendering creative litigation and legislative transformation.

First, and most importantly, the ERA would explicitly embed sex equality into the Constitution. The United States is in the marginal 24 percent of countries without a single constitutional provision on gender equality.[239] Ratification of the ERA would improve the United States’ global credibility with respect to sex discrimination, as many other countries’ constitutions—including some which were written under the direction of the U.S. government—expressly affirm legal equality on the basis of sex.[240] Additionally, an explicit constitutional prohibition on sex discrimination “would both shield existing rights from political winds as well as help expand protections and liberties for all women, girls, and other marginalized genders.”[241]

An explicit prohibition on sex discrimination would have practical impacts. Passage of the ERA would likely raise the level of judicial review of sex-based laws to strict scrutiny under equal protection analysis,[242] providing more protection against sex discrimination than the Fourteenth Amendment currently does.[243] As a result, state laws on child marriage, domestic violence, sexual harassment, pregnancy discrimination, reproductive rights, and parental rights—including (paid) family leave—would likely either be invalidated as unconstitutional or fortified “by a clear federal constitutional mandate, expanding protections for women and girls.”[244]

In addition, since the ERA prohibits the federal government from denying or abridging rights because of sex,[245] it may revive or strengthen certain federal legislation. For example, it might allow Congress to reauthorize provisions of the Violence Against Women Act struck down in United States v. Morrison,[246] provide additional legal support for survivors of sexual assault or harassment under Title IX, enhance statutory protections against pay discrimination, and provide a stronger constitutional basis for people seeking pregnancy accommodations under the Pregnancy Discrimination Act.[247] It may also support extending Title VII’s prohibition on sex discrimination and the Family Medical Leave Act’s parental leave rights to the federal judiciary.[248] Some have even argued that the ERA would bolster emerging issues such as menstrual equity.[249]

Passing the ERA as the Twenty-Eighth Amendment would also have significant symbolic importance, “communicating unequivocally that people across the gender spectrum are innately equal and deserving of constitutional protection.”[250] Such simple words could have the effect of changing not just laws, but also culture.[251] The omission of the words “women” or “sex” in the Constitution reveals that the Founding Fathers did not regard women as equal citizens; rather, “[t]he Constitution was written by and for white men with means, which reserved its principle of equal justice under law for the sole benefit of the authors and their privileged peers.”[252] The Founders’ intentional omission of women from the Constitution, and the more recent failure to ratify the ERA, have together “perpetuated a lack of respect for women and engendered a culture that allows sexual harassment to continue unchecked.”[253] As law is the most formal expression of public policy and the federal constitution is the clearest expression of our nation’s values, adding the ERA would “affirm that sex discrimination is inconsistent with the nation’s core value of equal protection under the law, and it would send a clear message about a national commitment to the inherent equality of all people.”[254]

Finally, and significantly, the effort to pass the ERA has itself led to great progress, demonstrating the inherent value in progressive social movements. Alongside activists pushing for the ERA’s ratification, “legal advocates operating on a parallel track executed a powerfully effective legal strategy that invoked the equal protection guarantee of the Fourteenth Amendment to invalidate laws that discriminated against women.”[255] Congress, taking inspiration from the movement, enacted important federal laws. For example, Title IX, enacted and signed into law in 1972, prohibits sex discrimination in education programs that receive federal support.[256] And in response to the Supreme Court holding that pregnancy discrimination is not sex discrimination under the Fourteenth Amendment,[257] Congress passed the Pregnancy Discrimination Act of 1978 to prohibit sex discrimination on the basis of pregnancy.[258] The politics of the ERA were, and continue to be, greater than just what takes place in courtrooms; “[t]he push to ratify the amendment creates a mobilization that adds ‘moral legitimacy’ to a broader array of efforts to advance gender equality.”[259] And women are better off thanks to those efforts.

B.     Problems

For all its strengths, however, the ERA is limited in its ability to fully address inequality, especially in the twenty-first century. It was written over one hundred years ago, and its current language is eighty years old. While some of the same gender inequality issues—such as unequal pay, sexual violence, and gender discrimination—persist, the world is very different today. Reproductive rights are being restricted, the dignity of LGBTQ+ individuals is under attack, and women of color continue to be multiply marginalized.

Furthermore, much of the ERA’s scope and reach depend largely on how its language is interpreted and enforced. Though we have made some strides in our understanding of equity and intersectionality, we have also observed the limitations of constitutional doctrines in protecting against non-state action and upholding remedial measures. We have also watched the Court strike down congressional efforts to enforce the Constitution’s existing vague and limited promises of equality. We therefore can and must look with a critical eye at an amendment espoused to ensure greater gender equality. Part II.B will consider some of the limitations of the ERA to avoid repeating the same mistakes.

First, the ERA lacks an intersectional lens that is crucial for affording sufficient protections to women of color. Pauli Murray,[260] one of the most important early ERA advocates, argued that Black women “have the most to gain from the adoption of the Equal Rights Amendment” because they “have been doubly victimized by the twin immoralities of racial and sexual bias.”[261] Yet, Murray believed the ERA would only be an adequate constitutional foundation for protecting the rights of women of color if courts interpreted it intersectionally—considering gender and race equity needs—with Black women at the center of the analysis.[262] Any other approach to combatting sex discrimination “that ignores or tacks on considerations of race discrimination disguises how the benefits of existing equality measures have been distributed in ways that center white women and further marginalize women of color.”[263] Both the ERA’s language and the foremost motivations driving its advocates also lack meaningful inclusion for marginalized groups at other intersections, including trans and gender non-binary people and people with disabilities.

Without explicitly intersectional text or evidence of concern for people with intersectional identities, textualist and originalist judges would likely adopt the narrowest construction by recognizing inequality on the basis of sex alone. An ERA that is not explicitly intersectional, but rather dependent on judges to glean an intersectional meaning “that is used to address one-dimensional sex discrimination—separate from other issues of race, class, economic and educational status, immigrant status, and disability—will not address the needs of those most marginalized who experience multiple forms of discrimination all at once.”[264]

Second, the ERA’s gender-neutral phrasing of “sex” would likely lead to a court-imposed formalistic rule of sex-blindness, like colorblindness, which would prevent affirmative or remedial policies designed to reduce inequality for women and LGBTQ+ people. Currently, laws with sex-based distinctions are subject to intermediate scrutiny,[265] which may, depending on the jurisdiction, uphold affirmative action and other proactive policies benefitting women.[266] As described in Part II.A, the ERA would likely raise judicial review of sex discrimination from intermediate to strict scrutiny.[267] In practice, “strict scrutiny virtually always invalidates the discriminations to which it is applied.”[268] This is desirable if the government’s sex-based classification is invidious or unnecessary—for example, sex-based classifications in hiring, pay and promotions, education, housing and lending, and sex-motivated harassment and violence by government actors.

But under strict scrutiny, governmental affirmative or remedial policies designed to help women or afford them a benefit would likely be struck down.[269] This could impact a variety of policies, such as affirmative action policies to increase women’s representation in leadership and STEM majors,[270] grants assisting women-owned businesses,[271] women-only scholarships[272] and networking events,[273] benefits and accommodations for pregnancy,[274] labor laws,[275] and single-sex institutions.[276] “Strict scrutiny would not only invalidate gender quotas, but would also make it easier to challenge and end other gender-conscious programs designed to reduce women’s unique disadvantages and injuries.”[277]

This has already happened at the state level: A California Court of Appeal, applying strict scrutiny, struck down a policy providing state funding to battered women’s shelters that only admitted women victims of domestic violence and their children.[278] The court found for the male plaintiff, holding that the female victims’ greater need for services did not provide a compelling state interest to classify by gender, even though men’s presence in the shelters could undermine the women’s sense of safety, given their psychological trauma.[279] Thus, under the formalistic sex-blind framework that at least some courts would likely discern from the ERA’s sex-neutral language and under the current anti-affirmative action strict scrutiny jurisprudence, virtually any classification on the basis of sex—invidious, benign, or remedial—would be invalidated. The 1970s strict scrutiny[280] that ERA advocates once favored has since become a less desirable anti-affirmative-action tool.

The Supreme Court’s recent imposition of anticlassification constitutional colorblindness in the race discrimination context makes it even more probable “that courts would interpret the new amendment, not as a requirement for active review, but as a mandate to sweep away all statutory sex distinctions per se, with no exception.”[281] Similar to the Court striking down affirmative action policies—policies aimed at helping racial minorities—for discriminating against white people, “the Court would likely interpret the ERA to bar government employers from changing policies that have a discriminatory effect against women on the ground that such changes would discriminate against men.”[282] This effect would be doubly felt by Black women who have historically benefited the least from sex- or race-based affirmative action programs[283] and for whom likely no government benefit would be upheld on account of race or sex.

Third, while the ERA improves the Fourteenth Amendment by explicitly reaching federal governmental action in addition to states’ actions,[284] the ERA does not reach the private sphere, including individuals and corporations, where much inequality is perpetuated. Thus, the provision of the Violence Against Women Act providing victims of gender-based violence a civil remedy against private individuals would almost certainly remain unconstitutional under the ERA.[285] The tens of millions of people in the independent workforce, to whom Title VII does not apply,[286] would continue to lack statutory and constitutional protection from harassment and discrimination.[287] Employees working at small businesses of less than fifteen people would still not be able to gain protection from sex discrimination unless Congress amends Title VII. Private schools and organizations that do not receive federal funding and are not subject to antidiscrimination laws such as Title IX[288] would be free to continue any form of discrimination, harassment, or exclusion.

Finally, there is nothing in the text of the ERA’s enforcement clause that obviously expands Congress’s enforcement power beyond that of the Fourteenth Amendment’s enforcement clause,[289] making it vulnerable to similar court-interpreted limitations. To be sure, since the amendment has not yet been formally ratified, it is unknown exactly how narrowly or broadly the Court would interpret Congress’s enforcement power under the ERA’s enforcement clause. As one scholar has pointed out, “A restrictive interpretation of the word ‘jurisdiction’ might require the Court to find justification for Congressional legislation against the evils of sex discrimination in some other clause of the Constitution, like the [C]ommerce [C]lause, rather than establish the new amendment as an independent source of power.”[290] Under this possible construction, Congress may not be able to legislate on issues related to sex equality considered to be solely of state concern.[291] Such a reading is not inevitable, but the ERA’s vague language may be subject to similar constricting interpretations as Section Five of the Fourteenth Amendment.

III. Reimagining Constitutionalized Equality

The procedural uncertainty surrounding the ERA’s ratification provides a moment of reflection and reimagination: If we were to construct a constitutional amendment aimed at addressing inequality with a twenty-first-century lens, what would it say? To be certain, starting anew poses its own challenges.[292] But this Note argues that the benefits of starting anew outweigh those challenges. A newly proposed constitutional amendment would provide an opportunity to update the amendment’s language and framing. The ERA’s limitations could be rectified, improving the amendment’s scope and significance. This would also consequently create a twenty-first-century set of framers to whom originalist jurists would have to look when interpreting the amendment. Additionally, a movement to pass a constitutional amendment aimed at addressing inequality for marginalized groups could help raise the issues impacting these communities, “prodding the courts and political branches in a positive direction.”[293]

This Part draws on frameworks identified by constitutional law scholars[294] to analyze key principles framers should consider when drafting a new amendment enshrining equality. In analyzing these various choices, this Part considers existing state and international constitutions and other proposed amendments that have successfully incorporated the most desirable principles, which can serve as a model for drafters.

A.     Suggestions for Drafting a New Amendment

American constitutional law generally follows traditions of constraint and espouses notions of “formal equality, symmetrically interpreted, against state rather than private action, to promote negative not positive rights, that are capable of administrable judicial enforcement.”[295] But to achieve meaningful equality and rectify the insufficiencies of existing law and the ERA, drafters should adopt a constitutional equality amendment unconstrained by these traditions.

The following sub-Parts identify several of the key principles and competing choices for drafters. While the competing principles are generally presented as binaries, this Note argues that the best provision is almost always one that blends or incorporates the strongest elements of each principle. In the end, an amendment constitutionalizing equality should aspire to promote substantive equality protecting historically subordinated groups, account for compounding forms of discrimination against those with intersecting identities, and guard against intentional and unintentional discrimination by state and private actors alike.

1.     Structural and Linguistic Considerations

Part III.A.1 explores some of the structural and linguistic choices drafters should consider that could impact how a constitutional equality amendment is interpreted and applied. These considerations reflect foundational aspects of what equality should mean and should look like to address ongoing inequities. Specifically, Part III.A.1 analyzes (a) granting equality generally or specifically; (b) adopting an anticlassification versus antisubordination framework; (c) preventing discrimination against people with intersecting identities; (d) protecting negative versus positive rights; and (e) guarding against intentional and unintentional discrimination, including discriminatory impact.

a.     General vs. Specific

Perhaps the most foundational consideration for drafting a new amendment is whether to include a provision favoring equality in general or sex (or race, ability, class) equality specifically.[296] The U.S. Constitution is generally specific when allocating powers and procedures, but vague in affording rights and protections.[297] Generality or specificity “principally affects the jurisdictional or institutional allocation of discretion.”[298] This Note argues for a specific provision that outlines particular protected classes but explicitly provides for adaptability in order to maximize the benefits of both generality and specificity.

The limitations of a vague grant of general equality outweigh its benefits. To be sure, a broader standard leaves more discretion for future interpreters to expand the language’s applicability beyond initially contemplated fact scenarios or groups.[299] For example, the Fourteenth Amendment’s general standard guaranteeing “all persons . . . equal protection of the laws” has been interpreted over time to provide increasing protection—albeit often insufficiently—for historically marginalized groups whom the Founders pointedly excluded, including women, LGBTQ+ people, and people with disabilities. Although the flexibility of evolving interpretation may be desirable, a broader grant of equality “defers to another day the question in what specific respects women [and others] should count as equal” and “enshrines dominant groups as the standard, failing to rectify discrimination for those who do not meet it.”[300]

A more specific provision favoring sex equality may address this limitation. For one, it would direct and, ideally, restrain interpreters and enforcers.[301] It would also be more likely to protect the most subordinated groups, “expressing the principle not only that all irrational discrimination is bad but also discrimination by race, sex, religion, and similar characteristics may be conclusively or nearly conclusively presumed irrational.”[302] The status quo is likely to persist rather than self-correct given the entrenchment of discriminatory social norms and systemic inequality.[303] Specificity, therefore, might more effectively challenge the status quo and maximize enforcement by focusing legal resources upon those subordinated groups who have the most to gain from an expression of equality.[304]

Almost half of the United States’ state constitutions include specific provisions prohibiting discrimination against protected classes.[305] Most protect against discrimination on the basis of race, religion, sex, or national origin. Connecticut’s and Nevada’s antidiscrimination clauses are exceptional, protecting an even wider range of classes:

Conn. Const. Art. I, § 20: No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.[306]

Nev. Const. Art. I, § 24: Equality of rights under the law shall not be denied or abridged by this State or any of its political subdivisions on account of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin.[307]

International law provides another example. The United Nations Convention on the Elimination of All Forms of Discrimination (CEDAW), which arose from the 1948 United Nations Universal Declaration of Human Rights (UDHR), specifies the privileges and immunities protected.[308] While the UDHR is general (“All are equal before the law and are entitled without any discrimination to equal protection of the law”[309]), CEDAW, by contrast, is highly specific. CEDAW defines discrimination as:

[A]ny distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.[310]

Specificity’s greatest benefit may, however, also be its biggest disadvantage: Because CEDAW expressly outlines protected classes, future interpreters may be unwilling or unable to expand rights and protections to unenumerated classes.

The best way to reap the benefits of both generality and specificity is to craft a specific provision that outlines particular protected classes but is intentionally adaptable, allowing for expansive future interpretation. Kimberlé Crenshaw and Catherine MacKinnon’s proposed Equality Amendment is the best example of a provision that strikes this balance:

Section 2. Equality of rights shall not be denied or abridged by the United States or by any State on account of sex (including pregnancy, gender, sexual orientation, or gender identity), and/or race (including ethnicity, national origin, or color), and/or like grounds . . . .[311]

While Section 2 of the Equality Amendment outlines specific protected classes, the “like grounds” clause is open-ended, permitting future recognition of unknown or unanticipated forms of inequality.[312]

b.     Anticlassification vs. Antisubordination

Related to considerations of generality and specificity is how to draw lines based on the type of equality envisioned. Specifically, drafters should consider whether the ban on discrimination should apply to forbidden classifications (such as race, sex, and sexual orientation), or to protected, historically subordinated classes (such as women, people of color, and LGBTQ+ individuals). Under a forbidden classification or anticlassification[313] framework, the harm itself is classifying people. In contrast, under a protected classes or antisubordination framework, the harm is discriminating against historically subordinated classes of people. Take sex as an example. Language banning discrimination on the basis of sex (anticlassification) would eliminate all laws that draw sex-based lines, protecting men and women alike. Language banning discrimination against women (antisubordination) would protect women, the subordinated class, in particular.

This distinction gets to the heart of what equality means. Equality on the basis of a forbidden classification represents notions of formal equality. Formal equality, also known as anticlassification, means treating everyone the same, regardless of any criterion or consideration.[314]

In contrast, equality on the basis of protected classes represents substantive equality. Under this view, equality is not defined in terms of sameness and difference, “but in terms of historic group disadvantage” and subordination.[315] The injury is not treating individuals or groups differently but rather subordinating one group to another.[316] The goal of substantive equality is to produce social equality,[317] which focuses on ensuring equal opportunities and outcomes for everyone.

Most antidiscrimination laws as well as federal constitutional law[318] regulate classifications, rather than class, and protect individuals, rather than groups.[319] Perhaps the best evidence of this is the discriminatory intent requirement, outlined above, which refuses to “treat as presumptively discriminatory facially neutral practices that have a disparate impact on historically excluded groups.”[320]

Both the Fourteenth Amendment as it has been interpreted and the ERA as it is written bar discrimination on the basis of sex (anticlassification) rather than barring discrimination against women (antisubordination). Under the current formal anticlassification framework, men can sue symmetrically with women, white plaintiffs symmetrically with Black plaintiffs, and so on. Indeed, male plaintiffs brought two-thirds of the constitutional sex discrimination cases that made it to the Supreme Court and shaped constitutional sex discrimination law.[321]

At least one benefit of an anticlassification rather than antisubordination approach is that it allows for fluid over fixed identities and is therefore likely able to incorporate protections for marginalized people across the gender spectrum. Just as the Supreme Court held in Bostock v. Clayton County that sex discrimination under Title VII necessarily incorporates protection against discrimination on the basis of sexual orientation and gender identity in the workplace,[322] an amendment using the word “sex” could protect LGBTQ+ individuals who are discriminated against for sexual attraction or gender expression. For example, Crenshaw and MacKinnon expressly state in their Equality Amendment that “[e]quality of rights shall not be denied or abridged by the United States or by any State on account of sex (including pregnancy, gender, sexual orientation, or gender identity).”[323] In effect, this language blends anticlassification and antisubordination by using a classification (sex) but naming the subordinated classes within that classification (pregnant and LGBTQ+ people).

There are also compelling benefits to a substantive antisubordination framework of equality. Rather than relying on a fiction that every person is equally situated and should therefore receive equal treatment, substantive equality takes a person’s circumstances—including historical and ongoing marginalization—into account in affording benefits or burdens that might otherwise go to the historically privileged or dominant class. Antisubordination also more directly attempts to correct the male bias of constitutional law:[324] “[J]udges do not have to be male supremacists to write doctrine which ultimately reinforces male supremacy, any more than they must be conservatives to reinforce the status quo.”[325]

An antisubordination framework also disturbs neutrality principles that reinforce the status quo, including the ongoing subordination of marginalized groups. “The principle of government neutrality requires that government policies as enacted may not promote the interest of one class over another.”[326] Neutral principles that govern an anticlassification framework, consistently applied, ultimately lose the power to initiate change and instead reinforce the status quo.[327] In contrast, an antisubordination framework concerned with inequality and disadvantage will “disturb the balance of power [and] the patterns of domination and subjection which prevail in society.”[328]

Finally, under an antisubordination-focused amendment, the government could ban policies or programs having a disparate impact on subordinated groups. This is crucial for the successful eradication of any form of discrimination since “policies undertaken without discriminatory motive may perpetuate inequalities established by prior acts of perpetual discrimination.”[329] An antisubordination approach may also allow the government to create and uphold affirmative programs benefitting subordinated groups without such programs being struck down as discriminating against the class that is not afforded benefits.

For all of these advantages, there is reason to be cautious of a purely antisubordination approach. Parsing out preferences that “ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women,”[330] or white people and people of color, people without and with disabilities, and so on, is not always easy. Worse, such preferences may even entrench a group in its traditional subordinate status.[331]

Given these concerns, the best provision is one that, like MacKinnon and Crenshaw’s proposed Equality Amendment and several other constitutions around the world,[332] incorporates both anticlassification and antisubordination by generally granting equality on the basis of classification and specifically affirming the equality of subordinated classes.[333] Such an amendment could have two separate clauses, one prohibiting sex (race, national origin, ability; and other classifications) discrimination and another independent clause guaranteeing women’s (and other subordinated groups’) equality. Together, these provisions would both be enforced through constitutional litigation and serve as a normative legal source to nudge legislative action.[334]

MacKinnon and Crenshaw’s Equality Amendment, after affirming equality on the basis of classification, expressly inserts an antisubordination provision, banning discrimination “on account of . . . like grounds of subordination.”[335] This express reference to subordination “provides more substantive language that otherwise could be reduced to anti-classification (as if classification is the only injury of subordination, when it is merely one tool of it).”[336]

Another illustrative proposed amendment is Representative Carolyn Maloney’s “new ERA,” which incorporates a protected class (women) into the ERA’s otherwise anticlassification amendment by inserting an additional sentence: “Women shall have equal rights in the United States and every place subject to its jurisdiction.”[337] This added language is “[m]ore than mere rhetoric . . . [it] is an affirmative statement of rights that would put the word ‘women’ into the Constitution for the first time—and clarify that the amendment’s purpose is to address historical discrimination against women.”[338]

The amendment should also exempt affirmative or ameliorative action designed to benefit subordinated groups as a form of discrimination. For example, the Canadian Constitution, while providing that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on . . . sex,”[339] also expressly states that this provision “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged . . . groups including those that are disadvantaged because of . . . sex.”[340] The amendment could even state that the general ban on discrimination on the basis of sex does not preclude any law, program, or activity with an objective of ameliorating the conditions of women.

c.      Single-Axis vs. Multidimensionality (Intersectionality)

Another consideration for drafters is whether, and how, to incorporate intersectionality. Intersectionality is “the acknowledgement that different forms of identity-based discrimination can combine to give rise to unique brands of injustice.”[341] Kimberlé Crenshaw, who coined the term, juxtaposes the single-axis framework that dominates antidiscrimination law and feminist theory with a multidimensional analysis that centers Black women and others whose multiple identities have been the basis of historic marginalization.[342]

Under the single-axis framework, identification and remediation of race and sex discrimination inquires primarily into the experiences of privileged members of the group—“[i]n race discrimination cases, discrimination tends to be viewed in terms of sex- or class-privileged Blacks; in sex discrimination cases, the focus is on race- and class-privileged women.”[343] This focus on the otherwise privileged distorts the analysis of racism and sexism because “the operative conceptions of race and sex become grounded in experiences that actually represent only a subset of a much more complex phenomenon.”[344]

When analyzing under a single-axis framework, a person is discriminated against because of sex or race, but not both. As described in Part I.B.2, courts have often imposed this false dichotomy in various ways: holding that plaintiffs can pursue only a sex or race discrimination claim, not both;[345] refusing to certify a class of Black women plaintiffs bringing both a sex and race discrimination claim by asserting that Black women do not represent white women;[346] and refusing to certify a class of Black women in race discrimination actions as inadequately representing Black men.[347]

Additionally, under a single-axis approach, discrimination against a white female or Black male becomes the standard by which sex and race discrimination are analyzed.[348] By refusing to allow a multiply-disadvantaged plaintiff to seek relief for compounding forms of discrimination, the government relegates these subordinated groups to one class or the other of which they do not represent the majority or standard. Within this falsified framing, they are likely to lose.

Equal protection jurisprudence also does not protect everyone equally. Since different identity-based discrimination triggers different tiers of scrutiny—strict scrutiny for race, intermediate scrutiny for sex, rational basis for sexual orientation—the doctrine is not designed to account for discrimination on the basis of multiple identities. This rigid framework makes acknowledging and remedying intersectional discrimination unnecessarily complicated, invites a “plucking away at identit[ies],”[349] and “reinforces rather than remedies cascading social harms across multiple overlapping constituencies.”[350]

For these reasons, drafters should be intentional in crafting an amendment that can identify and remedy intersectional discrimination. Crenshaw’s proposed Equality Amendment, which includes such a provision, is illustrative. In guaranteeing equality of rights on account of race “and/or sex and/or like grounds of subordination,”[351] the amendment explicitly acknowledges that discrimination on account of multiple identities occurs and must be remedied. Further, Section 1 of the proposed Equality Amendment grants equal rights to “[w]omen in all their diversity,” which is aimed at “avoiding failures to address the situation of women who are multiply subjected.”[352]

The South African Constitution also exemplifies how an amendment could explicitly acknowledge and prohibit intersectional discrimination. The Equality section of the South African Bill of Rights provides that “[t]he state may not unfairly discriminate directly or indirectly against anyone on one or more [protected] grounds.”[353] By prohibiting discrimination on one or more protected grounds, the language expressly incorporates a multidimensional framework protecting people with multiple subordinated identities from discrimination.

Drafters may wish to be even more explicit in protecting against intersectional discrimination. The amendment could provide that individuals or groups shall not be discriminated against on the basis of the intersection of multiple identities or characteristics. By expressly including the word “intersection,” multiply-disadvantaged plaintiffs’ challenges could not be ignored. On the other hand, this would leave interpretation of the word and its scope to judges, which may or may not be desirable. Ultimately, the amendment should include language that unequivocally states that people cannot be discriminated against on account of one or more protected grounds or identities, similar to the South African Constitution.

d.     Negative vs. Positive Rights

Fourth, drafters should consider whether women and other protected groups should have freedom only from legal exclusion and discrimination, or also some guarantee of freedom to the material preconditions of meaningful equality. American constitutional tradition generally provides only for freedom from government discrimination—negative rights—rather than freedom to certain affirmative benefits or conditions—positive rights.[354] Constitutional and even statutorily-granted rights are largely framed as something we are free from—governmental discrimination, abridgment, denial, unequal enjoyment, etc. Proponents of the negative state argue that the government best guarantees rights by intervening in society the least. This often leaves subordinated groups vulnerable.[355] Whether to affirm positive rights ultimately depends on whether drafters prefer the primary enforcers of rights to be the judiciary, achieved through litigation, or the legislature, achieved through the democratic process.

There are many positive rights advocates may desire: the right to work, minimal subsistence, equal pay, reproductive autonomy, healthcare, childcare, education, and more. Many international declarations and other countries’ traditions include such positive rights in their charters and constitutions. The International Covenant on Economic, Social, and Cultural Rights (ICESCR), for example, provides that signatories must ensure “just and favorable conditions for work,” including “equal pay for equal work” for women.[356] CEDAW lists extensive affirmative rights to ensure the “full development and advancement of women . . . on a basis of equality with men”[357] in areas including education,[358] reproductive health,[359] and employment.[360] The South African Constitution contains a lengthy list of socioeconomic rights, including the right to housing, healthcare, food, water, social security, education, and more, “which the drafters hoped would protect and assist those disadvantaged by Apartheid” and poor and vulnerable people in South Africa.[361]

Even if South Africa and signatories to the ICESCR and CEDAW fail to ensure all the enumerated positive rights, the rights nonetheless provide a goalpost. And beyond that, in a few challenges brought by poor, disadvantaged plaintiffs, the South African Constitutional Court has successfully required the government to provide affirmative rights, such as devising a public housing program to house historically disadvantaged communities and a plan to provide access to a drug called Nevirapine that can prevent the spread of HIV/AIDS from pregnant women to their fetuses at public health clinics.[362] In so doing, the Constitutional Court takes the positive rights enumerated in the South African Bill of Rights seriously by weighing whether the measures taken by the state to realize the positive right were reasonable, while still respecting separation of powers concerns and legislative competence by leaving the task of devising and implementing the plans to the government.[363] A constitutional amendment proposing a guarantee of equality may draw inspiration from the positive rights enumerated in South Africa’s Bill of Rights, which provide specific directive to the elected branches to build a more equal society.

The balance between affirming specific rights versus general principles of equality must be carefully constructed. This balance is best struck by affirming women’s equal access to rights rather than prohibiting the government from denying women equal rights, but not necessarily listing a specific set of rights. Express inclusion of some rights may lead to the exclusion of unenumerated rights. Further, the more rights that are constitutionally enumerated, the less power is left to the democratic legislature and the more is given to judges. Even with robust enforcement power, the legislature can choose not to enact a law, and constituents can vote them out. With constitutionally-created rights, the only means of enforcement is litigation, giving judges even more power.

Section 1 of the proposed Equality Amendment begins to strike this balance: “Women in all their diversity shall have equal rights in the United States and every place subject to its jurisdiction.”[364] This proposal affirmatively envisions equality as the right and frames it in a positive state—women “shall have equal rights,” rather than being free from denial of those rights.[365]

e.      Intent vs. Impact

Drafters should also consider whether to include language that would recognize a cause of action for intentional and unintentional discrimination alike, including discriminatory impact. As described in Part I.B.1, addressing policies and practices with discriminatory effects as well as purposes is crucial to successfully eradicating discrimination since policies undertaken without discriminatory motives may nonetheless perpetuate serious inequalities.[366] Though the Court has read the Fourteenth Amendment to ban only intentional discrimination, Title VII of the Civil Rights Act recognizes both disparate treatment[367] and disparate impact[368] theories of discrimination. Under these theories of liability, employers may be liable for engaging in a pattern or practice that repeatedly discriminates against members of a protected class or adversely affects a protected class. Similar theories of liability could be applied to a constitutional provision enshrining equality.

To ensure that courts interpreting a constitutional amendment enshrining equality recognize discriminatory impact claims coequally with discriminatory intent, the language should be clear. For example, CEDAW prohibits “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women.”[369] The South African Constitution provides that neither the state nor any person may “unfairly discriminate directly or indirectly against anyone.”[370]

Section 1 of the proposed Equality Amendment states that “[w]omen in all their diversity shall have equal rights in the United States and every place subject to its jurisdiction.”[371] MacKinnon and Crenshaw maintain this provision affirmatively grants equal rights to all women “whether intentionally or inadvertently, facially or by impact” and does not “imply or permit an intent requirement,”[372] but its language may not be sufficiently directive to an interpreting court, especially if they look to Fourteenth Amendment case law.

To ensure the amendment reaches discriminatory impact claims, drafters should include a clear and directive provision, like CEDAW or the South African Constitution, which expressly prohibits any restriction that directly or indirectly discriminates—or has the effect or purpose of discriminating—against protected groups.

2.     Litigating and Legislating Toward Gender Equality: Clauses to Consider

After considering some of these conceptual linguistic choices that will define how equality is interpreted and applied, drafters should consider two additional issues to rectify some of the deficiencies in Fourteenth Amendment Equal Protection jurisprudence: banning discrimination by private actors and including a more robust enforcement clause. Part III.A.2 analyzes each in turn.

a.     Private Action & Government Immunity

The next choice for drafters is whether to apply the ban on discrimination only to public actors, or to also extend it to private actors. The Thirteenth Amendment is the lone U.S. constitutional provision reaching private action.[373] The American constitutional tradition of regulating almost exclusively public action is rooted in policies of federalism, privacy, and a decentralized government.[374] Whereas the states with their plenary powers can regulate private life, the federal government with its narrower delegation of power traditionally does not.[375] Congress, however, routinely regulates antidiscrimination in the private sector, and there is no explicit constitutional prohibition on applying constitutional norms directly to private actors.[376]

Proponents of reaching private action in a provision affirming equality argue that since “social equality is a necessary precondition to civic or political equality,” regulating private actors as well as public actors is necessary to ensure “the exercise of civic or political participation on equal terms.”[377] Further, “[i]t is in the area of private relations that women are furthest from attaining equality”[378]—domestic violence, childcare, family planning, marital relations, street harassment, and other deeply ingrained stereotypes and prejudices permeate private spaces. Yet, it is precisely the area that legal reforms have either ignored or simply cannot reach because “[s]tates have defined them as ‘private,’ [and thus] they are often outside the scope of governmental control.”[379]

To be sure, drafters should be cautious in extending the amendment’s reach to private conduct. By applying its reach to private conduct, the judiciary would play a more active role in scrutinizing and adjudicating disputes involving violations of constitutional rights in private settings. Whereas right now much federal legislation regulating private conduct is aimed at protecting individuals from discrimination, judges adjudicating claims involving private actors may infuse freedom of contract, property rights, and corporate-friendly views into the provision, essentially co-opting its intended purpose of protecting marginalized groups.[380] The legislature may be better suited than judges to making substantive law based on expertise and an ability to adapt to changing circumstances.[381]

Although the Federal Constitution almost exclusively regulates state action, many international constitutions, and even several U.S. state constitutions, reach private action. CEDAW prohibits “any distinction, exclusion or restriction made on the basis of sex . . . in the political, economic, social, cultural, civil, or any other field.”[382] The “any other field” language extends the Convention’s reach to private spheres. The South African Constitution has two antidiscrimination provisions in the Equality section of its Bill of Rights, one banning discrimination by the government and the other by private actors: “No person may unfairly discriminate directly or indirectly against anyone on one or more grounds . . . .”[383] The Montana state Constitution’s individual dignity clause provides: “Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.”[384] Other state constitutions and proposed amendments impliedly reach private action by including a general prohibition on discrimination rather than prohibiting the state in particular from abridging or denying equal rights.[385] Similarly, the proposed Equality Amendment has no state-action requirement, impliedly reaching private action.[386]

Drafters should construct a provision that reaches both state and private actors. Since the judiciary already adjudicates claims of private discrimination occurring between individuals and institutions or corporations under statutory law, the benefits of an amendment reaching private action outweigh the potential drawbacks. Much discrimination manifests and is perpetuated in private spheres; if the amendment is to actually enforce equality, it must reach all of the places and actors undermining its stated values. To most clearly direct courts to recognize discrimination claims against private actors, the amendment could include language similar to the South African and Montana state constitutions, which provide that no person, firm, corporation, or institution shall discriminate.

In addition to reaching private action, a meaningful equality amendment should reach discrimination and harm by individual government actors. As described in Part I.A, severe sexual, racial, and other forms of discrimination and violence are perpetuated by government actors such as police officers,[387] sheriffs, prison guards and wardens, border patrol agents, legislators, and judges. Because most government officers enjoy some level of immunity from legal liability, the harm they perpetuate almost always goes unchecked without any accountability or remedy.[388] An amendment that grants equality but does not address government and officer immunity is incapable of protecting victims of harm committed by individual government actors.

To effectively overcome the judicially-created doctrines of officer and qualified immunity, the amendment could provide a specific cause of action stating that any individual whose rights under the amendment or federal constitution have been violated by a government actor, including but not limited to officials, agencies, and entities at the federal, state, and local levels, shall have the right to bring a cause of action in a court of law. It could also generally prohibit government actors from engaging in any form of discrimination, including actions, policies, or practices that discriminate against historically subordinated groups.

b.     Enforcement Clause

Finally, drafters should consider how to construct an enforcement clause that is clear and robust in granting legislatures the power to enact laws aimed at redressing historic and ongoing inequality, as well as the power to abrogate state sovereign immunity. As described in Part II.B, the ERA’s enforcement clause may be subject to the same narrowing interpretation of the legislature’s power as the Fourteenth Amendment. If drafters envision an amendment that affirmatively provides for equal rights and grants legislatures the political power to enact targeted laws remedying past inequality and present disparities, it must carefully construct a robust enforcement clause.

The enforcement clause in MacKinnon and Crenshaw’s proposed Equality Amendment, for example, provides that “[t]o fully realize the rights guaranteed under this Amendment, Congress and the several States shall take legislative and other measures to prevent or redress any disadvantage suffered by individuals or groups because of past and/or present inequality as prohibited by this Amendment.”[389] Stating that Congress “shall take” legislative action—rather than “shall have the power” to enforce the amendment, as in the Reconstruction amendments[390]—affirmatively directs legislative and administrative action to implement the amendment’s substantive provisions.[391] This grant of power would allow Congress to enact both remedial and substantive measures, giving Congress more power than it currently has under the Fifth or Fourteenth Amendments to enforce those amendments’ provisions.[392]

The proposed Equality Amendment’s enforcement clause also empowers states, concurrent with Congress, to enact laws enforcing the amendment’s equality guarantees. Such a dual grant of enforcement power would ease federalism concerns,[393] ensuring that states have power to govern their jurisdictions rather than, as Justice Black put it, “convert[ing] our national government of enumerated powers into a central government of unrestrained authority over every inch of the whole Nation.”[394]

While the enforcement clause could grant states dual enforcement power, it should also abrogate state sovereign immunity, similar to how the Court has interpreted Section Five of the Fourteenth Amendment as a limit on state sovereign immunity. States generally enjoy immunity from suit without their consent in their own courts and in federal courts through the Eleventh Amendment.[395] While state sovereign immunity is often an impenetrable barrier for plaintiffs seeking redress for violations of constitutional rights by states,[396] the Court has recognized a few instances whereby state sovereign immunity must give way in the face of congressional action, including under Section Five of the Fourteenth Amendment.[397] For an equality amendment to adequately protect individuals from discrimination by states, its enforcement clause must similarly abrogate state sovereign immunity in order to protect individuals from all forms of inequality and discrimination. The amendment could borrow the Court’s own language by providing that Congress may, in enforcing the provisions of the amendment, “provide for private suits against States or state officials.”[398]

Finally, the enforcement clause should be drafted in a way that leaves the democratically elected legislature with the power to enact laws enforcing the amendment’s promises and limits the judiciary’s ability to cabin Congress’s power. Most constitutional amendments’ enforcement clauses—including the Reconstruction Amendments—grant Congress the power to “enforce” the amendment “by appropriate legislation.”[399] The Court has explicitly interpreted the language “by appropriate legislation” in various amendments as a limit on congressional enforcement power,[400] undermining Congress’s ability to enact robust legislation aimed at addressing gender-based violence,[401] minority voting rights,[402] and free exercise of religion.[403]

The proposed Equality Amendment omits this language or any other modifier to its legislative grant and provides instead that Congress “shall take legislative and other measures to prevent or redress any disadvantage suffered by individuals or groups because of past and/or present inequality as prohibited by this Amendment.”[404] Under this clear and directive language, the authority to enact laws to give meaning and force to the amendment’s substantive provisions is properly bestowed upon Congress.

Conclusion

Most Americans believe the Constitution already guarantees equal rights on the basis of sex.[405] But by its literal terms it does not, unlike most state and international constitutions.[406] It also does not explicitly guarantee equality on the basis of race, national origin, or any other protected characteristic, unlike most state and international constitutions. But it could. “It is the responsibility of ‘We, the People’ to adapt the Constitution to the society we live in; to grow in our recognition of problems and potential solutions; to strengthen our democracy in an intimately interconnected world.”[407] It is our responsibility to correct the Founding Fathers’ gravest errors that have allowed the ongoing inequities and violence affecting women, particularly women of color, in every facet of American society—housing, healthcare, education, employment, food insecurity, and private spaces.

The ERA should be a starting point, a source for inspiration, but not the end goal. The ERA was first drafted over one hundred years ago and is insufficient to remedy ongoing inequities. The ERA lacks intersectional language that would otherwise protect women doubly discriminated against on account of sex or gender and race, disability, sexual orientation, age, or another protected characteristic. The ERA as drafted would protect against discrimination based on “sex,” which opens the door to a sex-blind interpretation—like the Supreme Court’s imposition of colorblindness in the race discrimination context—that would protect men and women alike. The existing ERA may also raise judicial review of sex discrimination from intermediate to strict scrutiny, which could invalidate affirmative action policies designed to benefit women. The ERA does not reach private action or individual government actors, where significant discrimination and harm is perpetuated. Finally, the ERA’s enforcement clause may be vulnerable to the same judicially created limitations as the Fourteenth Amendment’s enforcement clause, stymieing Congress’s ability to legislate meaningful change.

We must envision a twenty-first-century amendment that intentionally addresses these deficiencies. That amendment must account for intersectionality, discriminatory impacts, private action, and discrimination by government officials. It must also ensure Congress has robust power to bring these promises to life. A constitutional amendment granting substantive equality could also provide a framework for ensuring that the government can enact remedial measures benefitting women of color and those who experience the most severe inequality.

Passing such an amendment would doubtless be difficult. It would likely be faced with opposition, as the ERA was, for decades. But as the history of the movement to pass the ERA has shown, the resiliency of its advocates eventually led to bipartisan support. The effort to pass a constitutional amendment addressing sex inequality can itself be an animating force that drives progress. It can push legislative action, provide a rallying cry for organizers, and empower legal advocates.

Efforts by the Supreme Court, presidential administrations, and state governments to restrict the rights and status of subordinated groups cannot be a reason to succumb. Rather, the fact that the United States is closer now than ever to the first state-led constitutional convention in its history should be reason enough to begin envisioning and creating a society that upholds the equality and dignity of all—and especially those excluded since the Founding.

Copyright © 2025 Hannah Naylor, J.D. 2024, University of California, Berkeley, School of Law. A special thank you to Professor Amanda Tyler whose guidance, feedback, and mentorship made this Note possible. A special thank you as well to Professors Kathryn Abrams and john powell whose thought-provoking class discussions inspired and refined many of the ideas in this Note. I am also incredibly grateful to the California Law Review Editors who provided thoughtful feedback and invaluable edits. Finally, I am thankful for Simon Lunche for pushing me to write this piece when it was only an idea and for encouraging me throughout the process.

           [1].     Shirley Chisholm was the first Black woman elected to Congress, and she delivered this speech to members of the U.S. House of Representatives. Shirley Chisholm, U.S. Representative, I Am for the Equal Rights Amendment (Aug. 10, 1970) (emphasis added) (transcript available at https://www.blackpast.org/african-american-history/1970-shirley-chisholm-i-am-equal-rights-amendment/) [https://perma.cc/GSC3-YDZL].

           [2].     Gloria Steinem, Foreword to Jessica Neuwirth, Equal Means Equal: Why the Time for an Equal Rights Amendment Is Now (2015).

           [3].     Kathleen M. Sullivan, Constitutionalizing Women’s Equality, 90 Calif. L. Rev. 735, 735 (2002).

           [4].     See id. at 739 (“[W]omen’s rights advocates persuaded the Court to read guarantees of sex equality into the Equal Protection Clause . . . .”). Constitutional law and feminist scholars Catharine MacKinnon and Kimberlé Crenshaw described constitutional gender equality as “hanging onto race like a castaway clinging to a slender piece of doctrinal driftwood.” Catharine A. MacKinnon & Kimberlé W. Crenshaw, Reconstituting the Future: An Equality Amendment, 129 Yale L.J.F. 343, 347 (2019).

           [5].     This Note posits that restrictions on reproductive autonomy—the power to make all decisions about reproduction—perpetuate harmful and discriminatory gender stereotypes that limit equal participation in society. Within this framing, reproductive autonomy is a gender equality issue. See The Constitutional Right to Reproductive Autonomy, Ctr. for Reprod. Rts., https://reproductiverights.org/constitutional-right-reproductive-autonomy-14th-amendment/ [https://perma.cc/3UXN-HCCY] (connecting reproductive autonomy to sex stereotyping and gender discrimination in the following way: “Because government control of decisions related to reproduction and pregnancy perpetuates the legal, social, and economic inferiority of women, these laws are a form of sex discrimination . . . .”).

           [6].     See Roe v. Wade, 410 U.S. 113, 164 (1973) (holding that the Fourteenth Amendment’s Due Process Clause right to privacy protects the right to obtain an abortion), overruled by, Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022); Dobbs, 597 U.S. at 362 (J. Breyer, dissenting) (“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”); see also Amy Myrick, Ctr. for Reprod. Rts., Roe and Intersectional Liberty Doctrine 8–10 (2018), https://reproductiverights.org/wp-content/uploads/2020/12/Liberty-Roe-Timeline-spread-for-web.pdf [https://perma.cc/K3XS-9E3H] (tracking the progression and strategies of securing the constitutional right to abortion over the years and explaining how abortion advocates argued that “the Fourteenth Amendment protects a realm of personal decision-making and bodily integrity from government intrusion”).

           [7].     Pauli Murray, The [Black] Woman’s Stake in the Equal Rights Amendment, 6 Harv. C.R.-C.L. L. Rev. 253, 253 (1971).

           [8].     See generally, e.g., Dobbs, 597 U.S. 215 (overturning Roe v. Wade and the constitutional right to abortion).

           [9].     Indeed, a constitutional provision enshrining equality will depend “upon discretionary interpretation to bring that equality to fruition.” Sullivan, supra note 3, at 764.

         [10].     As most of the Constitution provides vague grants of freedom, liberty, and equality, rather than elaborate or specific provisions, there is little evidence of what the Court would do with a highly specific constitutional amendment. In aspiring to constrain courts with specification, however, conservatives’ true allegiance to textualist and originalist methods of constitutional interpretation would be put to the test.

         [11].     Stopping a Dangerous Article V Convention, Common Cause, https://www.commoncause.org/our-work/constitution-courts-and-democracy-issues/article-v-convention/ [https://perma.cc/D8ZL-CHRS]; Carl Hulse, A Second Constitutional Convention? Some Republicans Want to Force One, N.Y. Times (Sep. 4, 2022), https://www.nytimes.com/2022/09/04/us/politics/constitutional-convention-republican-states.html [https://perma.cc/6DC3-TP9G].

         [12].     Progress Map: States that Have Passed the Convention of States Article V Application, Convention of States Action, https://conventionofstates.com/states-that-have-passed-the-convention-of-states-article-v-application [https://perma.cc/5QKK-2YPF].

         [13].     This Note does not analyze the political feasibility of passing a new constitutional amendment, which would undoubtedly face significant barriers. Rather, this Note argues that there are compelling practical reasons to organize around a new amendment rather than passing the existing ERA.

         [14].     Tracy A. Thomas, From 19th Amendment to ERA, A.B.A. (Jan. 22, 2020), https://www.americanbar.org/groups/public_education/publications/insights-on-law-and-society/volume-20/issue-1/from-19th-amendment-to-era/ [https://perma.cc/2B7J-7AR6].

         [15].     Id.

         [16].     Katie Costanzo, The Equal Rights Amendment – A 100 Year History, Reagan Libr. Educ. Blog (Aug. 25, 2023), https://reagan.blogs.archives.gov/2023/08/25/the-equal-rights-amendment-a-100-year-history/ [https://perma.cc/54SU-RRLV].

         [17].     While much of the data presented in Part I.A focuses on disparities, I acknowledge that an overemphasis on disparities alone may be problematic. Scholars john powell and Ned Conner have articulated these problems well: A disparity focus (1) assumes that “whatever the more favored group has is the right target or that the favored group has too much and must give some up so that the less favored group can benefit,” when in reality neither group may have achieved the desired outcome; (2) “normalizes or establishes as a baseline the experience of the dominant group”; and (3) when extended into a solutions or remedy context, “can exacerbate the first problem of reinforcing the idea of equity as zero-sum, and increases the risk that it will generate backlash and greater intensity of opposition.” john powell & Ned Conner, Form and Substance: Understanding Conceptual and Design Differences Among Racial Equity Proposals and a Bold Application, 38 Ohio St. J. on Disp. Resol. 13, 26, 28 (2023).

         [18].     “When the ERA was written, women’s status in American society was often considered secondary to men’s. Legal restrictions—such as prohibitions against voting and property ownership—combined with long-standing stereotypes about women’s roles meant that women were relegated to certain defined spaces and not treated as full citizens. In particular, many women of color were further constrained by the compounding effects of entrenched racial, ethnic, and gender biases, reinforcing a societal hierarchy where they had diminished status when compared with white women.” Robin Bleiweis, The Equal Rights Amendment: What You Need to Know, Ctr. for Am. Progress (Jan. 29, 2020), https://www.americanprogress.org/article/equal-rights-amendment-need-know/ [https://perma.cc/P793-YKYH].

         [19].     See Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, §§ 701–716, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 2000e–2000e-17); Equal Pay Act of 1963, Pub. L. No. 88-38, 77 Stat. 56 (codified as amended at 29 U.S.C. § 206(d)).

         [20].     Richard Fry & Carolina Aragão, Gender Pay Gap in U.S. Has Narrowed Slightly over 2 Decades, Pew Rsch. Ctr. (Mar. 4, 2025), https://www.pewresearch.org/short-reads/2023/03/01/gender-pay-gap-facts/ [https://perma.cc/3CRZ-GPXY].

         [21].     Francine D. Blau & Lawrence M. Khan, The Gender Wage Gap: Extent, Trends, and Explanations 789, 823–31, 854 (Nat’l Bureau of Econ. Rsch., Working Paper No. 21913, 2016).

         [22].     This is true even after controlling for experience, education, marital status, and hours worked. Natalie Kitroeff & Jessica Silver-Greenberg, Pregnancy Discrimination Is Rampant Inside America’s Biggest Companies, N.Y. Times (Feb. 8, 2019) https://www.nytimes.com/interactive/2018/06/15/business/pregnancy-discrimination.html [https://perma.cc/V645-BUMD].

         [23].     The Simple Truth About the Gender Pay Gap, Am. Ass’n of Univ. Women, https://www.aauw.org/resources/research/simple-truth/ [https://perma.cc/FPK7-BL77].

         [24].     See Rakesh Kochhar, The Enduring Grip of the Gender Pay Gap, Pew Rsch. Ctr. (Mar. 1, 2023), https://www.pewresearch.org/social-trends/2023/03/01/the-enduring-grip-of-the-gender-pay-gap/ [https://perma.cc/R7YP-AFVR].

         [25].     5 Facts About Black Women in the Labor Force, Wash. Informer (Aug. 3, 2021), https://www.washingtoninformer.com/5-facts-about-black-women-in-the-labor-force/ [https://perma.cc/9393-2NPP].

         [26].     Kochhar, supra note 24.

         [27].     Id.

         [28].     Jasmine Tucker, Nat’l Women’s L. Ctr., The Wage Gap Has Robbed Women of Their Ability to Weather COVID-19, at 1 (2021), https://nwlc.org/wp-content/uploads/2021/03/EPD-2021-v1.pdf [https://perma.cc/E6E9-B8NS].

         [29].     David Neumark, Experimental Research on Labor Market Discrimination 803, 833–37, 857 (Nat’l Bureau of Econ. Rsch., Working Paper No. 22022, 2016) (finding evidence of hiring discrimination against gay men and workers with disabilities, including receiving significantly lower callbacks as compared to heterosexual workers and workers without disabilities).

         [30].     5 Facts About Black Women in the Labor Force, supra note 25.

         [31].     While many countries have made rapid progress in women’s representation in politics, the United States’ rank for women represented in national legislatures has sunk from 41 in the world in 1997 to 101 in 2017. “At the current rate of progress, women will not achieve full legislative parity in the U.S. Congress for another hundred years.” Saskia Brechenmacher, Tackling Women’s Underrepresentation in U.S. Politics: Comparative Perspectives from Europe, Carnegie Endowment for Int’l Peace (Feb. 20, 2018), https://carnegieendowment.org/2018/02/20/tackling-women-s-underrepresentation-in-u.s.-politics-comparative-perspectives-from-europe-pub-75315 [https://perma.cc/7MD8-9CRY]; see also Kira Sanbonmatsu, Women’s Underrepresentation in the U.S. Congress, 149 Dædalus 40, 40–41 (2020) (reporting that the United States “lag[s] behind other nations with respect to women’s representation” in elected office).

         [32].     See, e.g., Esteban Ortiz-Ospina, Joe Hasell & Max Roser, Economic Inequality by Gender, Our World in Data (Mar. 2024), https://ourworldindata.org/economic-inequality-by-gender/#representation-of-women-in-senior-managerial-positions [https://perma.cc/UK9D-GCJ3] (finding that in 2023, women fill only 44.4 percent of senior and middle management positions “in government, as well as large enterprises and institutions”).

         [33].     Id.

         [34].     Id.

         [35].     Jayme Fraser & Jessica Guynn, 2 Years After George Floyd Pledges, Black Women Still Denied Top Jobs at Largest Companies. This Is Why, USA Today (May 25, 2022), https://www.usatoday.com/story/money/2022/05/25/black-women-business-executives-diversity/9828385002/?gnt-cfr=1 [https://perma.cc/Z6PF-A85G].

         [36].     Though integrating women into the top wage earners may be undesirable as compared to distributing wealth more equally, weighing that choice is outside the scope of this Note. These statistics are used merely to display socioeconomic disparities primarily affecting women of color.

         [37].     See, e.g., Crystal Raypole, Gender Bias in Healthcare Is Very Real — and Sometimes Fatal, Healthline (Jan. 20, 2022), https://www.healthline.com/health/gender-bias-healthcare [https://perma.cc/3QUN-ZTVS] (tracing historic gender bias in healthcare and modern-day bias, including a 2015 study finding that female cancer patients “waited longer to receive a diagnosis after their symptoms first appeared”).

         [38].     Jennifer I. Manuel, Racial/Ethnic and Gender Disparities in Health Care Use and Access, 53 Health Servs. Rsch. 1407, 1423 (2018).

         [39].     Women are less likely than men to be uninsured because, on average, women have lower incomes than men and are thus more likely to qualify for Medicaid. Women’s Health Insurance Coverage, KFF (Dec. 12, 2024), https://www.kff.org/womens-health-policy/fact-sheet/womens-health-insurance-coverage/ [https://perma.cc/BYT2-LYHG].

         [40].     Id. (“One in five (17%) women with incomes under 200% of the FPL ($31,700 for an individual in 2023) are uninsured [], compared to 7% of women with incomes at or above 200% FPL. One in five Hispanic (20%) and American Indian and Alaska Native (19%) women are uninsured. A higher share of women in single parent households are uninsured (10%) than women in two-parent households (7%) (data not shown).”).

         [41].     Id.

         [42].     For example, a 2015 study found that heterosexual women have a significantly lower prevalence of cervical cancer compared with lesbian and bisexual women due to unequal access to sexually transmitted infection testing. Gabrielle Kassel, How to Identify and Help End 7 LGBTQIA+ Health Disparities, Healthline (Oct. 26, 2021), https://www.healthline.com/health/lgbtq-health-disparities#learn-more [https://perma.cc/DX2C-Q626].

         [43].     Madeline Y. Sutton, Ngozi F. Anachebe, Regina Lee & Heather Skanes, Racial and Ethnic Disparities in Reproductive Health Services and Outcomes, 2020, 137 Obstetrics & Gynecology 225, 225 (2021).

         [44].     Id.

         [45].     Section 1557 of the Affordable Care Act provides that individuals cannot be subject to discrimination on the basis of race, color, national origin, sex, age, or disability, in harmony with other federal civil rights laws. Patient Protection and Affordable Care Act § 1557, 42 U.S.C. § 18116.

         [46].     Donna L. Hoyert, Nat’l Ctr. for Health Stats., Maternal Mortality Rates in the United States, 2020 (2022), https://www.cdc.gov/nchs/data/hestat/maternal-mortality/2020/maternal-mortality-rates-2020 [https://perma.cc/7Y2G-2GK6]; see also Khiara M. Bridges, Racial Disparities in Maternal Mortality, 95 N.Y.U. L. Rev. 1229, 1248 (2020) (documenting and exploring the causes of racial disparities in maternal mortality in the United States, including poverty, stress, and weathering experienced by Black people, and differences in quality of care as compared to white patients).

         [47].     Zara Abrams, Abortion Bans Cause Outsized Harm for People of Color, Am. Psych. Ass’n (June 1, 2023) https://www.apa.org/monitor/2023/06/abortion-bans-harm-people-of-color [https://perma.cc/5U6J-DMQD].

         [48].     See, e.g., Emily Medosch, Not Just ICE: Forced Sterilization in the United States, Immigr. & Human Rts. L. Rev. Blog (May 28, 2021), https://lawblogs.uc.edu/ihrlr/2021/05/28/not-just-ice-forced-sterilization-in-the-united-states [https://perma.cc/S4RZ-QNEZ] (describing the history of forced sterilization among minority communities in the United States and documenting that in 2020, women reported they were medically abused by a gynecologist while in ICE detention); Nicole Narea, The Outcry over ICE and Hysterectomies, Explained, Vox (Sep. 18, 2020), https://www.vox.com/policy-and-politics/2020/9/15/21437805/whistleblower-hysterectomies-nurse-irwin-ice (describing a complaint filed by women alleging they were forcibly sterilized while in ICE detention) [https://perma.cc/AT72-FALA].

         [49].     See, e.g., Corey G. Johnson, Female Inmates Sterilized in California Prisons Without Approval, Reveal (July 7, 2013), https://revealnews.org/article/female-inmates-sterilized-in-california-prisons-without-approval/ [https://perma.cc/HG98-7HBM] (reporting that from 2006 to 2010, nearly 150 women were forcibly sterilized by doctors under contract with the California Department of Corrections and Rehabilitation); Natalie Delgadillo, California Sterilized More People Than Any U.S. State but Has Yet to Compensate Victims, Governing (Aug. 3, 2017), https://www.governing.com/archive/gov-sterilization-california-reparations-tennessee-eugenics.html [https://perma.cc/WF2T-2S88] (reporting that Latinx women have been forcibly sterilized in California at 2.65 times the rate of other women).

         [50].     “In 2021, the National Fair Housing Alliance estimated that there are more than four million annual instances of housing discrimination (across all protected classes).” Sammi Aibinder, Andrea Flynn, Richelle Gernan, Sarah Hassmer & Rakeen Mabud, Nat’l Women’s L. Ctr., The Roots of Discriminatory Housing Policy: Moving Toward Gender Justice in Our Economy 7 (2022), https://nwlc.org/wp-content/uploads/2022/08/Housing-Paper-Accessible-FINAL-1.pdf [https://perma.cc/8R8W-XSSR]; see also Examples of Housing Discrimination, U.S. Dep’t of Hous. & Urb. Dev., https://www.hud.gov/program_offices/fair_housing_equal_opp/examples_housing_discrimination [https://perma.cc/RR4C-VCZ4].

         [51].     See Laurie Goodman, Jung Hyun Choi & Jun Zhu, More Women Have Become Homeowners and Heads of Household. Could the Pandemic Undo that Progress?, Urb. Inst. (Mar. 16, 2021), https://www.urban.org/urban-wire/more-women-have-become-homeowners-and-heads-household-could-pandemic-undo-progress [https://perma.cc/J8VL-HL8A].

         [52].     See Jaboa Lake, The Pandemic Has Exacerbated Housing Instability for Renters of Color, Ctr. for Am. Progress (Oct. 30, 2020), https://www.americanprogress.org/article/pandemic-exacerbated-housing-instability-renters-color/ [https://perma.cc/TU8J-EJW7].

         [53].     “Over the course of their lifetime, one in five Black women––compared to one in 15 white women––experience eviction.” Aibinder, Flynn, Gernan, Hassmer & Mabud, supra note 50, at 3.

         [54].     Stacia West, Amy Castro Baker, Chenyi Ma & Stacy Elliott, Reversing the Gains of the Civil Rights and Women’s Movements: How Housing Strain and Market Exclusion Led to Wealth Depletion During the Great Recession, 12 J. Soc’y for Soc. Work & Rsch. 263, 267 (2021) (showing that “[o]lder women homeowners—particularly older women of color—were targeted for subprime lending, reverse redlining, and fringe financial products during the housing crisis, even when they qualified for safer products” (citations omitted)); see also Robert Bartlett, Adair Morse, Richard Stanton & Nancy Wallace, Consumer-Lending Discrimination in the FinTech Era 5, 20 (Nat’l Bureau of Econ. Rsch., Working Paper No. 25943, 2019) (showing that people of color in California lost millions of dollars as a result of the higher fees and interest rates they were charged for consumer lending products).

         [55].     Nat’l Women’s L. Ctr. & Nat’l Low Income Hous. Coal., Gender and Racial Justice in Housing 2 (2021), https://nwlc.org/wp-content/uploads/2021/02/Gender-and-Racial-Justice-in-Housing.pdf [https://perma.cc/KW5G-8GM5].

         [56].     Access to safe and affordable housing is a primary barrier for survivors when choosing to leave an abusive partner. Parents who receive a housing voucher are one-third less likely to experience domestic violence, and survivors of domestic violence are more likely to leave their abusive partner when receiving a long-term housing subsidy. Moreover, domestic violence is one of the primary causes of being unhoused for women and children in the United States. Laura L. Rodgers, Transitional Housing Programs and Empowering Survivors of Domestic Violence, U.S. Dep’t of Just.: Archives (Nov. 1, 2019), https://www.justice.gov/archives/ovw/blog/transitional-housing-programs-and-empowering-survivors-domestic-violence [https://perma.cc/99JD-GPGN] (“[B]etween 22 and 57 percent of women and children are homeless due to domestic violence, with 38 percent of all victims experiencing homelessness at some point in their lives due to domestic violence.”).

         [57].     Id. Housing assistance can decrease the likelihood that low-income women and families become unhoused. For example, one study found that permanent housing subsidies reduced the proportion of families being unhoused or doubling up with others by almost 50 percent. See Off. of Pol’y Dev. & Rsch., U.S. Dep’t of Hous. & Urb. Dev., Family Options Study: 3-Year Impacts of Housing and Services Interventions for Homeless Families, at xxvii (2016), https://www.huduser.gov/portal/sites/default/files/pdf/Family-Options-Study-Full-Report.pdf [https://perma.cc/5CNZ-KVPH].

         [58].     “Today, 47% of women ages 25 to 34 have a bachelor’s degree, compared with 37% of men. The share of young women with a bachelor’s degree has increased by 22 percentage points since 1995,” compared to men’s 12-point percentage increase. Kiley Hurst, U.S. Women Are Outpacing Men in College Completion, Including in Every Major Racial and Ethnic Group, Pew Rsch. Ctr. (Nov. 18, 2024), https://www.pewresearch.org/short-reads/2024/11/18/us-women-are-outpacing-men-in-college-completion-including-in-every-major-racial-and-ethnic-group/ [https://perma.cc/S4C8-HBGE].

         [59].     Jon Marcus, While Women Outnumber Men on Campus, Their Later Earnings Remain Stuck, NPR (June 13, 2024), https://www.npr.org/2024/06/13/g-s1-4038/women-outnumber-men-colleges-earnings [https://perma.cc/7CUH-XUSN].

         [60].     Fast Facts: Women of Color in Higher Ed, Am. Ass’n of Univ. Women, https://www.aauw.org/resources/article/fast-facts-woc-higher-ed/ [https://perma.cc/M2X5-CACQ].

         [61].     See 600 U.S. 181 (2023).

         [62].     Amanda Heidt, Universities Axe Diversity Statements in Wake of US Supreme Court Ruling on Affirmative Action, Nature (Sep. 27, 2023), https://www.nature.com/articles/d41586-023-03049-8 [https://perma.cc/QD4H-6B5Y]. The second Trump Administration’s Department of Education warned educational institutions that receive federal funding that using “racial preferences” or “diversity, equity and inclusion” in admissions, financial aid, and hiring violates SFFA. Letter from Craig Trainor, Acting Assistant Sec’y for C.R., U.S. Dep’t of Educ., to Colleague (Feb. 14, 2025), https://www.ed.gov/media/document/dear-colleague-letter-sffa-v-harvard-109506.pdf [https://perma.cc/6QZJ-S47F]; see Olivia Hampton, Obed Manuel & Leila Fadel, Schools, Colleges Have 2 Weeks to Ban DEI. An Education Expert Warns It Won’t Be Easy, NPR (Feb. 19, 2025), https://www.npr.org/2025/02/19/nx-s1-5300992/the-department-of-education-has-given-schools-a-deadline-to-eliminate-dei-programs [https://perma.cc/M8Q5-YZMD].

         [63].     Where We Stand: Sexual Harassment and Sexual Violence in School, Am. Ass’n of Univ. Women, https://www.aauw.org/resources/policy/position-school-harassment/ [https://perma.cc/R3LK-JTEH] (finding that 6.8 percent of all male undergraduate students have also experienced sexual assault).

         [64].     Women’s Sports Found., 50 Years of Title IX: We’re Not Done Yet 23 (2022), https://www.womenssportsfoundation.org/wp-content/uploads/2022/05/13_Low-Res_Title-IX-50-Report.pdf [https://perma.cc/RVR5-THF6].

         [65].     Kimberlé Williams Crenshaw, Priscilla Ocen & Jyoti Nanda, Afr. Am. Pol’y F. & Columbia L. Sch. Ctr. for Intersectionality & Soc. Pol’y Stud., Black Girls Matter: Pushed Out, Overpoliced and Underprotected 5 (2015).

         [66].     After Donald Trump was elected in 2024, the Biden Administration withdrew its proposed rule change that would have prohibited schools from banning transgender athletes from participating in teams that match their gender identity. Brad Brooks, Biden Administration Withdraws Proposed Rule Limiting Transgender Bans in Sports, Reuters (Dec. 20, 2024), https://www.reuters.com/world/us/biden-administration-withdraws-proposed-rule-limiting-transgender-bans-sports-2024-12-21/ [https://perma.cc/N7WF-4E69]. Trump swiftly signed an Executive Order banning trans women from participating in cisgender women’s sports. See Exec. Order No. 14201, 90 Fed. Reg. 9279 (Feb. 11, 2025).

         [67].     Glen Colby & Chelsea Fowler, Am. Ass’n of Univ. Professors, Data Snapshot: IPEDS Data on Full-Time Women Faculty and Faculty of Color 5 (2020) (“There are many variables that contribute to the gender pay gap in academia, including biases in hiring and promotion practices, lack of institutional resources and support, and caregiving responsibilities.”).

         [68].     Areeba Haider & Lorena Roque, New Poverty and Food Insecurity Data Illustrate Persistent Racial Inequities, Ctr. for Am. Progress (Sep. 29, 2021), https://www.americanprogress.org/article/new-poverty-food-insecurity-data-illustrate-persistent-racial-inequities/ [https://perma.cc/3Q7L-H9LW].

         [69].     Valarie Blue Bird Jernigan, Kimberly R. Huyser, Jimmy Valdes & Vanessa Watts Simonds, Food Insecurity Among American Indians and Alaska Natives: A National Profile Using the Current Population Survey–Food Security Supplement, 12 J. Hunger & Env’t Nutr. 1, 1–2 (2017).

         [70].     Nina Sevilla, Food Apartheid: Racialized Access to Healthy Affordable Food, Nat. Res. Def. Council (Apr. 2, 2021), https://www.nrdc.org/bio/nina-sevilla/food-apartheid-racialized-access-healthy-affordable-food [https://perma.cc/485G-ETLJ] (“When comparing communities with similar poverty rates, Black and Latino neighborhoods tend to have fewer supermarkets that offer a variety of produce and healthy foods, and have more small retail (i.e. convenience and liquor) stores that have fewer produce options than in predominantly white neighborhoods.”).

         [71].     Brooke LePage & Sarah Javaid, Nat’l Women’s L. Ctr., Economic, Food, and Housing Insecurity Remain High for Women and Families Entering the Third Year of the Pandemic 2 (2022), https://nwlc.org/resource/economic-food-and-housing-insecurity-remain-high-for-women-and-families-entering-the-third-year-of-the-pandemic/# [https://perma.cc/536Y-SKLM].

         [72].     Equal Rts. Amend. Project & Racial Just. Project, Columbia L. Sch. Ctr. for Gender & Sexuality L., The Sex Equality Gap: How the 20th Century Sex Equality Paradigm Continues to Leave Women of Color Behind 7 (2023). Black families disproportionately experience food insecurity and involvement with child protective agencies. See Alisha Coleman-Jensen, Matthew P. Rabbitt, Christian A. Gregory & Anita Singh, U.S. Dep’t of Agric., Household Food Security in the United States in 2020, at 17 (2021), https://www.ers.usda.gov/webdocs/publications/102076/err-298.pdf [https://perma.cc/6TV8-REUZ]; Frank Edwards, Sara Wakefield, Kieran Healy & Christopher Wildeman, Contact with Child Protective Services Is Pervasive but Unequally Distributed by Race and Ethnicity in Large US Counties, 118 Procs. Nat’l Acad. Scis. 1, 1–2 (2021).

         [73].     Food Accessibility, Insecurity and Health Outcomes, Nat’l Inst. on Minority Health & Health Disparities (July 3, 2024), https://www.nimhd.nih.gov/resources/understanding-health-disparities/food-accessibility-insecurity-and-health-outcomes.html [https://perma.cc/44MK-J92Z].

         [74].     Global Food Security, Nat’l Inst. of Food & Agric., https://www.nifa.usda.gov/topics/global-food-security [https://perma.cc/735N-LE76].

         [75].     See Aisha Harris, She Founded Me Too. Now She Wants to Move Past the Trauma, N.Y. Times (Oct. 15, 2018), https://www.nytimes.com/2018/10/15/arts/tarana-burke-metoo-anniversary.html [https://perma.cc/93D2-YGM9].

         [76].     For example, victims of sex trafficking “include all races, ethnicities, sexual orientations, gender identities, citizens, non-citizens, and income levels.” Sex Trafficking, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/violenceprevention/sexualviolence/trafficking.html [https://perma.cc/UD88-WTTA].

         [77].     See Kimberle Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 140.

         [78].     YWCA, Gender-Based Violence Facts (2017), https://www.ywca.org/wp-content/uploads/WWV-GBV-Fact-Sheet-Final.pdf [https://perma.cc/K7W8-HSQR] (“Gender-based violence occurs across all races, ages, classes, and ethnic backgrounds, though at disparate rates and with disproportionate impacts for women of color.”); Ctrs. for Disease Control and Prevention, Preventing Sexual Violence (2022), https://www.cdc.gov/violenceprevention/sexualviolence/fastfact.html [https://perma.cc/32PB-D5HS] (“Women and racial and ethnic minority groups experience a higher burden of sexual violence.”); see also Sandra Park, The Links Between Racialized and Gender-Based Violence, ACLU (Apr. 1, 2021), https://www.aclu.org/news/racial-justice/the-links-between-racialized-and-gender-based-violence [https://perma.cc/4LPB-LCQY] (“[W]omen of color so often live at the intersection of harm caused by racism, sexism, and other forms of discrimination.”); Crenshaw, supra note 77, at 163 (explaining that “the Black community was not immune from domestic violence” but, due to certain racial stereotypes, “[t]he struggle against racism seemed to compel the subordination of certain aspects of the Black female experience in order to ensure the security of the larger Black community”).

         [79].     YWCA, supra note 78.

         [80].     Id.

         [81].     Id.

         [82].     Statistics – The Prevalence of Street Harassment, Stop St. Harassment, https://stopstreetharassment.org/resources/statistics/statistics-academic-studies/ [https://perma.cc/7H65-ZAL4].

         [83].     Sexual misconduct is the second most frequently reported type of police misconduct after excessive force, and “[a] 2010 study found that the rate of sexual assault by police is more than double that of the general public.” Elizabeth Tang, Sexual Assault by Police Is a Systemic Problem that Demands a Systemic Remedy, Nat’l Women’s L. Ctr. (Oct. 15, 2021), https://nwlc.org/sexual-assault-by-police-is-a-systemic-problem-that-demands-a-systemic-remedy/ [https://perma.cc/UQ7P-BLTA]. “A yearlong investigation by The Associated Press has found about 1,000 officers who lost their licenses in a six-year period for rape, sodomy and other sexual assaults; sex crimes that included possession of child pornography; or sexual misconduct such as propositioning citizens or having on-duty intercourse.” Matt Sedensky & Nomaan Merchant, AP: Hundreds of Officers Lose Licenses over Sex Misconduct (Oct. 31, 2015), https://apnews.com/article/5a66f08987f445d9ba9253ba3d706691 [https://perma.cc/AQM9-W2JP].

         [84].     See, e.g., Mark Dow, Sex Abuse and Homeland Security, Crime Rep. (May 12, 2017), https://thecrimereport.org/2017/05/12/sex-and-the-dhs/ [https://perma.cc/U2PW-T27K] (“From 2010 to 2016, there were ‘33,126 complaints of sexual and/or physical abuse against DHS component agencies.’”); Matthew Haag, Thousands of Immigrant Children Said They Were Sexually Abused in U.S. Detention Centers, Report Says, N.Y. Times (Feb. 27, 2019), https://www.nytimes.com/2019/02/27/us/immigrant-children-sexual-abuse.html [https://perma.cc/C8LQ-AK4D] (“The federal government received more than 4,500 complaints in four years about the sexual abuse of immigrant children who were being held at government-funded detention facilities . . . .”).

         [85].     Jamillah Bowman Williams, Georgetown L., #MeToo and Public Officials: A Post-Election Snapshot of Allegations and Consequences 2 (2018), https://www.law.georgetown.edu/wp-content/uploads/2018/11/MeToo-and-Public-Officials.pdf [https://perma.cc/7ET5-KFMY] (showing that “a total of at least 138 government officials in both elected and appointed positions[] have been publicly reported for sexual harassment, assault, misconduct, or violence against women since the 2016 election”). Allegations varied from unwanted kissing, groping, and masturbating to domestic violence, sexual misconduct with minors, and sex trafficking.

         [86].     Allegations of sexual misconduct within both state and federal judiciaries have surfaced in the aftermath of #MeToo. See, e.g., Brief for Named & Unnamed Current & Former Employees of the Federal Judiciary Who Were Subject to or Witnessed Misconduct as Amici Curiae in Support of Appellant Jane Roe at 12–17, Roe v. United States, No. 21-1346 (4th Cir. Aug. 26, 2021) (describing allegations of federal judges harassing and discriminating against judicial law clerks on the basis of sex, race, sexual orientation, and pregnancy); David Migoya, Colorado’s Judicial Discipline Commission Launches Inquiry into Memo’s Misconduct Allegations, Burlington Rec. (Sep. 21, 2021), https://www.burlington-record.com/2021/09/12/colorado-judicial-discipline-commission-investigation-misconduct/ [https://perma.cc/4Y28-F393] (describing an investigation into allegations that Colorado state judges, “most of them men, fostered a culture of sexual harassment”); Mattathias Schwartz, Federal Judge in Alaska Resigns Amid Accusations of Sexual Harassment, N.Y. Times (July 9, 2024), https://www.nytimes.com/2024/07/09/us/federal-judge-alaska-sexual-harassment.html [https://perma.cc/2DTZ-2A9P] (reporting on a federal judge from the U.S. District Court for the District of Alaska who “resigned after investigators found that he had been abusive to his law clerks, had an ‘inappropriately sexualized relationship’ with one of them, and then lied about his misconduct”).

         [87].     See, e.g., Words from Prison: Sexual Abuse in Prison, ACLU (June 12, 2006), https://www.aclu.org/documents/words-prison-sexual-abuse-prison [https://perma.cc/V2NX-L2AG]; Press Release, Bureau of Just. Stats., Substantiated Incidents of Sexual Victimization Reported by Adult Correctional Authorities, 2016–2018 (Jan. 31, 2023), https://bjs.ojp.gov/press-release/substantiated-incidents-sexual-victimization-reported-adult-correctional-authorities [https://perma.cc/HSQ2-PUBV] (showing that adult correctional authorities reported over 2,200 substantiated reports of staff-on-inmate sexual victimization between 2016 and 2018).

         [88].     Due to immunity doctrines and other legal obstacles, “the victim of a sexual assault at the hands of a federal employee may be left without any remedy against either the government or the individual in any venue, state or federal.” Gregory C. Sisk, Holding the Federal Government Accountable for Sexual Assault, 104 Iowa L. Rev. 731, 731 (2019).

         [89].     Native women are disproportionately trafficked for sex, prostituted, and disappeared. See, e.g., Steven W. Perry, U.S. Dep’t of Just., American Indians and Crime 1991-2002, at 5–6 (2004) https://bjs.ojp.gov/content/pub/pdf/aic02.pdf [https://perma.cc/U55D-A55F]; Sarah Deer, Relocation Revisited: Sex Trafficking of Native Women in the United States, 36 Wm. Mitchell L. Rev. 621, 624–29 (2010). In Congress’s findings and purposes for the Violence Against Women Reauthorization Act of 2022, it cited that “American Indians and Alaska Natives are 2.5 times as likely to experience violent crimes—and at least 2 times more likely to experience rape or sexual assault crimes—compared to all other races.” H.R. 1620, 117th Cong. § 901(a)(1) (2021).

         [90].     Sexual Violence and Intimate Partner Violence Among People with Disabilities, Ctrs. for Disease Control and Prevention (June 1, 2020), https://www.cdc.gov/violenceprevention/sexualviolence/svandipv.html [https://perma.cc/X2QF-DVC3].

         [91].     YWCA, supra note 78 (“One of every four [unhoused] women is [unhoused] because of violence committed against her and over 92 percent of [unhoused] mothers have experienced severe physical and/or sexual abuse during their lifetime.”).

         [92].     One in two transgender individuals is sexually abused or assaulted at some point in their life. 5 to 9 percent have reported being assaulted by police officers, 15 percent have reported being sexually assaulted while in custody or jail, and another 10 percent were assaulted by healthcare professionals. Responding to Transgender Victims of Sexual Assault, Off. for Victims of Crime (June 2014), https://ovc.ojp.gov/sites/g/files/xyckuh226/files/pubs/forge/sexual_numbers.html [https://perma.cc/8L67-WH4N].

         [93].     Transgender youth have reported being sexually assaulted by peers or staff in K–12 settings, and 22 percent have reported being sexually assaulted while staying in shelters for unhoused people. Id. Transgender youth of color are also at particularly heightened risk of sex trafficking. See, e.g., Meaghan Tomasiewicz, Loyola Univ. Ctr. for the Human Rts. of Child., Sex Trafficking of Transgender and Gender Nonconforming Youth in the United States 1, 4–5 (2018), https://ecommons.luc.edu/chrc/16/ [https://perma.cc/66KC-HJ59].

         [94].     See, e.g., Jameta Nicole Barlow, Black Women, the Forgotten Survivors of Sexual Assault, Am. Psych. Ass’n (Feb. 1, 2020), https://www.apa.org/topics/sexual-assault-harassment/black-women-sexual-violence. [https://perma.cc/C5Z4-76QQ] (describing the police violence and sexual violence that is uniquely committed against Black women).

         [95].     YWCA, supra note 78.

         [96].     See, e.g., Kimberlé Williams Crenshaw, Opinion, Black Women Are the Unseen Victims of Police Brutality. Why Aren’t We Talking About It?, L.A. Times (July 21, 2023), https://www.latimes.com/opinion/story/2023-07-21/black-women-police-brutality-violence-racism-sexism [https://perma.cc/C23Z-4V3B].

         [97].     See, e.g., LaShawn Harris, #SayHerName: Black Women, State Sanctioned Violence & Resistance, Org. of Am. Historians, https://www.oah.org/tah/history-for-black-lives/sayhername-black-women-state-sanctioned-violence-resistance/ [https://perma.cc/3WPG-A8EV]. For more on the history of slavery and state-sanctioned violence against Black women, see Sexual Violence Targeting Black Women, Equal Just. Initiative, https://eji.org/report/reconstruction-in-america/the-danger-of-freedom/sidebar/sexual-violence-targeting-black-women/ [https://perma.cc/E583-GZGF]; Caren M. Holmes, The Colonial Roots of the Racial Fetishization of Black Women, 2 Black & Gold 1, 2 (2016).

         [98].     Nat’l Black Women’s Just. Inst., Sex Trafficking of Black Women & Girls 1–2 (2022), https://www.nbwji.org/_files/ugd/0c71ee_cd4d16e2b9ce4568be165c09a6badf53.pdf [https://perma.cc/96US-QTDX].

         [99].     See, e.g., Sylvanna Falcón, “National Security” and the Violation of Women: Militarized Border Rape at the US-Mexico Border, in Color Of Violence: The INCITE! Anthology: Incite! Women of Color Against Violence 119, 119–29 (2006) (documenting rapes at the border).

       [100].     Understanding the Intersections of Sexual Assault and Immigration Status, Tahirih Just. Ctr. (Apr. 26, 2023), https://www.tahirih.org/news/understanding-the-intersections-of-sexual-assault-and-immigration-status/ [https://perma.cc/PL6J-LE89].

       [101].     Such additional forms of abuse include threats of deportation despite immigration status; language barriers; lack of knowledge of the American legal system; threatened deportation; threatened reporting of employment status if the survivor works “under the table”; withdrawal of petition to complete legalization status; fear of law enforcement; and threats to keep a survivor’s children. YWCA, supra note 78.

       [102].     Before Justice Ginsburg, American Civil Liberties Union lawyers Dorothy Kenyon and Pauli Murray advocated for heightened scrutiny for sex-based classifications under the Equal Protection Clause in White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966). The three-judge panel agreed with Kenyon and Murray, who won their case arguing that sex-based discrimination against women in jury service violated equal protection. Id. at 409. But because the state of Alabama did not appeal the case to the Supreme Court, “[i]t was left to Ginsburg to realize Kenyon’s and Murray’s dream.” Wendy Webster Williams, Ruth Bader Ginsburg’s Equal Protection Clause: 1970-80, 25 Colum. J. Gender & L. 41, 42 n.4 (2013).

       [103].     See Sullivan, supra note 3, at 739 (“In the absence of gender-specific constitutional text, the story of constitutionalizing American women’s equality is a story of creative interpretation of the Equal Protection Clause and of advocates’ bravado. Led with inventiveness and strategic brilliance by now-Justice Ruth Bader Ginsburg, litigating as a founding director of the American Civil Liberties Union Women’s Rights Project, women’s rights advocates persuaded the Court to read guarantees of sex equality into the Equal Protection Clause.”).

       [104].     Relying on Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974), the Roberts Court has foreclosed sex-based equal protection challenges to bans on abortion or gender-affirming care, holding that medical procedures “that only one sex can undergo” do not trigger heightened scrutiny “unless the regulation is a mere pretext for invidious sex discrimination.” Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 236 (2022); United States v. Skrmetti, 145 S. Ct. 1816, 1833 (2025).

       [105].     Thanks primarily to Justice Ginsburg’s fierce advocacy, by 1976, the Court applied heightened scrutiny to cases alleging sex discrimination in violation of the Equal Protection Clause. Webster, supra note 102, at 49 n.27; see Craig v. Boren, 429 U.S. 190, 197 (1976) (“To withstand constitutional challenge . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”).

       [106].     See, e.g., Gillian Thomas, This Women’s History Month, Celebrate Title VII for Banning Sex Discrimination in the Workplace, ACLU (Mar. 9, 2016), https://www.aclu.org/news/womens-rights/womens-history-month-celebrate-title-vii-banning-sex [https://perma.cc/3DNU-BFQP] (describing the ways Title VII and the Pregnancy Discrimination Act helped advance women’s and pregnant workers’ rights); Alvin Powell, How Title IX Transformed Colleges, Universities over Past 50 Years, Harv. Gazette (June 22, 2022), https://news.harvard.edu/gazette/story/2022/06/how-title-ix-transformed-colleges-universities-over-past-50-years/ [https://perma.cc/58ZN-J32V] (describing the impacts of Title IX on women in education and college athletics).

       [107].     Section 1 of the Fourteenth Amendment of the U.S. Constitution provides:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

       [108].     See Cong. Globe, 39th Cong., 1st Sess. 2961 (1866) (arguing that the guarantees of due process and equal protection “[were] essentially declared in the Declaration of Independence”). In a majority opinion determining the scope of Congress’s power to enact legislation pursuant to Section Five of the Fourteenth Amendment, Justice Black stated: “Above all else, the framers of the Civil War Amendments intended to deny to the States the power to discriminate against persons on account of their race . . . [t]he Fourteenth Amendment was surely not intended to make every discrimination between groups of people a constitutional denial of equal protection.” Oregon v. Mitchell, 400 U.S. 112, 126–27 (1970).

       [109].     Sullivan, supra note 3, at 736. But see Benjamin B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction: 39th Congress, 1865-1867, at 46, 50, 83 (1914) (explaining that while protecting newly freed slaves was a priority, the Joint Committee of Congress that drafted the Fourteenth Amendment rejected various proposals that would have limited the Fourteenth Amendment’s equality guarantee to a prohibition on racially discriminatory laws, preferring a universal guarantee of equality instead); Const. Accountability Ctr., The Meaning of Equal: Does the Constitution Prohibit Discrimination on the Basis of Gender and Sexual Orientation? 1 (2012), https://www.theusconstitution.org/wp-content/uploads/2012/06/Crossroads-Chapter-8.pdf [https://perma.cc/U6A7-AC3T] (reciting Justice Ginsburg’s broad interpretation that “[w]hat [the framers of the Fourteenth Amendment] were getting at, basically, and you will find this popping up again and again in the legislative record, they were against caste. They did not want the United States to have any classes or castes that would identify people by their birth status”); David H. Gans, Const. Accountability Ctr., Perfecting the Declaration: The Text and History of the Equal Protection Clause of the Fourteenth Amendment 3, 31–33 (2011), https://www.theusconstitution.org/wp-content/uploads/2017/12/Perfecting_the_Declaration.pdf [https://perma.cc/VW5R-4979] (noting that although the written text should control, “not the expectations of the framers, there is still the matter of Section 2 of the Fourteenth Amendment, which served as a textual anchor for continued discrimination against women with respect to voting. At the time of its ratification, the text of the Fourteenth Amendment was at war with itself, with Section 2 sanctioning a form of discrimination that was otherwise plainly prohibited by the sweeping terms of Section 1”).

       [110].     Instruction to the Jury by the Court in the Case of United States v. Susan B. Anthony, Univ. of Mo. Kan. City Sch. of L.: Famous Trials, https://famous-trials.com/anthony/447-instruction [https://perma.cc/784U-VGX4] (declaring that “[t]he 14th Amendment gives no right to a woman to vote,” but instead had as its object “the protection of the newly emancipated [Black people]” and granting “the right of male inhabitants to vote”); The History of the Equal Rights Amendment (ERA), Alice Paul Ctr. for Gender Just., https://www.alicepaul.org/equal-rights-amendment-2/ [https://perma.cc/TH4Y-QKNX] (“The 14th Amendment, providing an equal protection clause to all U.S. citizens, was not originally intended to apply to women, as it predates the 19th Amendment.”).

       [111].     MacKinnon & Crenshaw, supra note 4, at 354–55 (emphasis added).

       [112].     See generally, e.g., N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (applying a history and traditions test for determining whether government restrictions on the right to keep and bear arms is constitutional); Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 234 (2022) (imputing an originalist test for determining whether there is a constitutional right to abortion, and holding that there is not by looking at “whether the right at issue in this case is rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as ‘ordered liberty’”).

       [113].     See, e.g., Harry Litman, Originalism, Divided, Atlantic (May 25, 2021), https://www.theatlantic.com/ideas/archive/2021/05/originalism-meaning/618953/ [https://perma.cc/2MP4-X4TM].

       [114].     Originalism and the Rights of Women, Ariz. State Univ. Ctr. for Const. Design (Feb. 19, 2023), https://constitutionaldesign.asu.edu/?video=originalism-and-the-rights-of-women [https://perma.cc/SFX4-63MC].

       [115].     Michael D. Ramsey, Beyond the Text: Justice Scalia’s Originalism in Practice, 92 Notre Dame L. Rev. 1945, 1945 (2017).

       [116].     Max Fisher, Scalia Says Constitution Doesn’t Protect Women from Gender Discrimination, Atlantic (Jan. 4, 2011), https://www.theatlantic.com/politics/archive/2011/01/scalia-says-constitution-doesn-t-protect-women-from-gender-discrimination/342789/ [https://perma.cc/AB32-6P97]; Paul Courson, Scalia Comments Show Need for New Rights Amendment, Backers Say, CNN (Jan. 6, 2011), https://www.cnn.com/2011/POLITICS/01/06/era.scalia/index.html [https://perma.cc/Y42G-YC39] (describing congressional supporters of the ERA underscoring the need to take action to ratify the amendment).

       [117].     Judy Mann, Grave Threat to Women, Wash. Post (Aug. 21, 1987), https://www.washingtonpost.com/archive/local/1987/08/21/grave-threat-to-women/85e9189c-4cc5-4369-b303-c8ead45b5025/ [https://perma.cc/2T47-47V9].

       [118].     Excerpts from Questioning of Judge Bork by Senate Committee Chairman, N.Y. Times (Sep. 16, 1987), https://www.nytimes.com/1987/09/16/us/excerpts-from-questioning-of-judge-bork-by-senate-committee-chairman.html [https://perma.cc/MJG9-7M8L] (rejecting the ERA as “put[ting] all the relationships between the sexes in the hands of judges where it should be in the hands of legislators”).

       [119].     Bleiweis, supra note 18.

       [120].     “[Scalia’s] remark has been cited as clear evidence of the need for an Equal Rights Amendment to guarantee that all judges, regardless of their judicial or political philosophy, will interpret the Constitution to prohibit sex discrimination.” Alice Paul Inst., Equal Rights Amendment: Frequently Asked Question 8 (2018), https://www.congress.gov/116/meeting/house/109330/documents/HHRG-116-JU10-20190430-SD013.pdf [https://perma.cc/9YRU-YELT].

       [121].     Michael Waldman, Originalism Run Amok at the Supreme Court, Brennan Ctr. for Just. (June 28, 2022), https://www.brennancenter.org/our-work/analysis-opinion/originalism-run-amok-supreme-court [https://perma.cc/5A9E-WR2L]; Sam Berger, Conservative Court Packing, Ctr. for Am. Progress (Apr. 3, 2019), https://www.americanprogress.org/article/conservative-court-packing/ [https://perma.cc/JU95-WLCA] (explaining the concerns regarding conservative court packing in the federal judiciary). Indeed, conservatives are pushing for even more originalist briefing and interpretation in the lower federal courts. See Josh Blackman, Professor of L., S. Tex. Coll. L. Hou., Inaugural Edwin Meese III Originalism Lecture: Originalism and Stare Decisis in the Lower Courts (May 22, 2022) (arguing “[i]n an ideal world, all advocates would develop originalist arguments in all constitutional cases” and that “[l]ower courts should request original briefing”).

       [122].     404 U.S. 71, 76 (1971) (holding that sex-differential laws must be rationally related to a valid legislative purpose). For a review of the state of sex discrimination law under the Equal Protection Clause up to 1971, see generally Andrew Schepard, Sex Discrimination and Equal Protection: Do We Need a Constitutional Amendment?, 84 Harv. L. Rev. 1499 (1971).

       [123].     Sullivan, supra note 3, at 742. As Sullivan notes, sex differs from race in important ways. Women are not discrete and insular minorities, or minorities at all—they are a numerical majority both demographically and electorally. “[R]ace and sex discrimination have differed historically in severity and motivation.” Id. at 742–44.

       [124].     Rachael Wright, GOP Congressman Seeks Alternate Legislation to Equal Rights Amendment, Colo. Pol. (Feb. 4, 2023), https://www.coloradopolitics.com/news/gop-congressman-seeks-alternate-legislation-to-equal-rights-amendment-a-look-back/article [https://perma.cc/CPY6-S37D] (noting that “Bakke laid precedent that the Fourteenth Amendment was not intended to cover sex discrimination”).

       [125].     438 U.S. 265, 303 (1978).

       [126].     MacKinnon & Crenshaw, supra note 4, at 347.

       [127].     See, e.g., Lenora M. Lapidus, The Constitution Protects Women Despite Justice Scalia’s Views, ACLU (Jan. 6, 2011), https://www.aclu.org/news/smart-justice/constitution-protects-women-despite-justice-scalias-views [https://perma.cc/L8NG-HBYN] (noting that the Equal Protection Clause “simply states that the government shall not deny ‘any person’ the equal protection of the laws,” and “[c]learly women fall within the category of ‘any person’”); Gans, supra note 109, at 31 (“In writing the text, the framers went beyond the promise of equality in the Declaration of Independence, clearly guaranteeing the equal protection of the laws to all persons, not simply to ‘all men.’ Women, undoubtedly, are persons within the terms of the Equal Protection Clause.”).

       [128].     Lapidus, supra note 127.

       [129].     Chief Justice John Marshall remarked over two centuries ago in M‘Culloch v. Maryland, “[W]e must never forget that it is a Constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” 17 U.S. 316, 407, 415 (1819). This type of approach to constitutional interpretation “recognizes that the Constitution sets forth broad principles and that the central challenge of constitutional interpretation is to define and then give life and substance to those principles in an ever-changing society.” Geoffrey Stone & William P. Marshall, The Framers’ Constitution, Democracy: J. Ideas (2011), https://democracyjournal.org/magazine/21/the-framers-constitution [https://perma.cc/EJW4-US2A].

       [130].     Sullivan, supra note 3, at 742 (emphasis added).

       [131].     See generally 597 U.S. 215 (2022) (overruling both Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) and holding that the Constitution does not confer a right to abortion).

       [132].     See generally J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), in which Justice Scalia and Chief Justice Rehnquist each echo Reconstruction-era equal protection jurisprudence excluding sex equality from its reach and focusing exclusively on racial discrimination. Justice Rehnquist argues that the Constitution treats gender-based peremptory strikes differently from race-based ones because “race lies at the core of the commands of the Fourteenth Amendment” and “there are sufficient differences between race and gender discrimination.”). Id. at 154, 155 (Rehnquist, C.J., dissenting).

       [133].     The last case that presented the question of gender equality under the Fourteenth Amendment’s Equal Protection Clause to the Supreme Court was Obergefell v. Hodges, in which the Court held that the Equal Protection Clause guarantees the right of same-sex couples to marry. 576 U.S. 644, 675 (2015). Three of the five Justices in the majority—Justices Kennedy, Ginsburg, and Breyer—are no longer on the Court, and three of the four dissenting Justices who are still on the Court—Chief Justice Roberts and Justices Thomas and Alito—argued that the Equal Protection Clause does not enshrine a right of same-sex couples to marry. Id. at 706–08 (Roberts, C.J., dissenting); id. at 715–16 (Scalia, J., dissenting) (arguing that “[w]hen it comes to determining the meaning of a vague constitutional provision—such as ‘due process of law’ or ‘equal protection of the laws’—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification”).

       [134].     Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 274 (1979) (holding that a law’s disparate impact on women must be intentional to be deemed sex-based and in violation of the Equal Protection Clause).

       [135].     Craig v. Boren, 429 U.S. 190, 197 (1976) (“To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”).

       [136].     MacKinnon & Crenshaw, supra note 4, at 350 (emphasis added).

       [137].     Note, also, that as “[t]he fundamental strategy of sex equality litigation has been to get rights for men in order to get them for women[,] [c]onstitutional [e]qual [p]rotection law has accordingly worked better for men, whose claims of sex discrimination have provided its foundation, than for women of any color.” Id. at 351.

       [138].     426 U.S. 229, 239 (1976) (holding that laws or practices with a racially discriminatory impact are not unconstitutional unless they reflect a racially discriminatory purpose or intention).

       [139].     MacKinnon & Crenshaw, supra note 4, at 348.

       [140].     Id.

       [141].     Erwin Chemerinsky, We the People: A Progressive Reading of the Constitution for the Twenty-First Century 206 (2018).

       [142].     Id. at 206–07. For more on race and proving discriminatory intent under the Equal Protection Clause, see Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 322 (1987) (“Traditional notions of intent do not reflect the fact that decisions about racial matters are influenced in large part by factors that can be characterized as neither intentional—in the sense that certain outcomes are self-consciously sought—nor unintentional—in the sense that the outcomes are random, fortuitous, and uninfluenced by the decisionmaker’s beliefs, desires, and wishes.”).

       [143].     Chemerinsky, supra note 141, at 206–07.

       [144].     Id. at 208–09 (explaining that “[t]he Court rejected the definition of intent that is followed in much of the law: that intent can be shown by demonstrating that a person acted with knowledge of foreseeable consequences,” and instead “adopted a criminal law definition of intent, meaning having to prove the desire to cause those results”).

       [145].     Craig v. Boren, 429 U.S. 190, 204 (1976).

       [146].     MacKinnon & Crenshaw, supra note 4, at 348.

       [147].     See 442 U.S. 256, 274 (1979).

       [148].     Id. at 259, 276.

       [149].     MacKinnon & Crenshaw, supra note 4, at 349 (noting that there is no doctrinal test for what is facial and what is not).

       [150].     Reaffirming “that the Fourteenth Amendment guarantees equal laws, not equal results.” Feeney, 442 U.S. at 273.

       [151].     MacKinnon & Crenshaw, supra note 4, at 349.

       [152].     Justice White, dissenting in City of Mobile v. Bolden where the Supreme Court held the City of Mobile’s municipal electoral system was constitutional despite its racially discriminatory effect, noted that the Court’s discriminatory intent jurisprudence “le[ft] the courts below adrift on uncharted seas.” 446 U.S. 55, 103 (1980) (White, J., dissenting).

       [153].     Comment, Proving Discriminatory Intent from a Facially Neutral Decision with a Disproportionate Impact, 36 Wash. & Lee L. Rev. 109, 112, 120 (1979).

       [154].     Aziz Huq, Judging Discriminatory Intent 1 (Univ. Chi. L. Sch. Pub. L. & Legal Theory Working Papers, Paper No. 650, 2017), https://chicagounbound.uchicago.edu/public_law_and_legal_theory/662 [https://perma.cc/7676-9ND6].

       [155].     Comment, supra note 153, at 127.

       [156].     See generally Schlesinger v. Ballard, 419 U.S. 498 (1975) (upholding a Navy regulation that required the discharge of male officers who had gone nine years without a promotion but allowed women to remain thirteen years without a promotion); Califano v. Webster, 430 U.S. 313, 314–16 (1977) (upholding an amendment to the Social Security Act, remedying the past discrimination of women under it, under which the amount women could recover during “elapsed years” depended upon the sex of the wage earner).

       [157].     Emily Montagna, Standard-less Intermediate Scrutiny of Gender-Based Affirmative Action Programs: The Right Man for the Job? 1 (2019), https://scholarship.shu.edu/cgi/viewcontent.cgi?article=2111&context=student_scholarship [https://perma.cc/2MAN-58QV].

       [158].     See, e.g., id. Contrast Brunet v. Columbus, 1 F.3d 390, 403–04 (6th Cir. 1993) (interpreting the Supreme Court’s holding in City of Richmond v. J.A. Croson Corp., 488 U.S. 469 (1989) to mean that gender-based preferences are subject to the same strict scrutiny standard as race-based programs), with Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1580 (11th Cir. 1994) (rejecting reading Croson to require gender-based preferences to meet strict scrutiny and holding instead that “[i]ntermediate scrutiny remains the applicable constitutional standard in gender discrimination cases”).

       [159].     See, e.g., Croson, 488 U.S. at 493 (plurality opinion) (“Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.”).

       [160].     MacKinnon & Crenshaw, supra note 4, at 350.

       [161].     In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Supreme Court, citing precedent, repeatedly emphasized that “ameliorating societal discrimination does not constitute a compelling interest that justifies race-based state action”:

“[A]n effort to alleviate the effects of societal discrimination is not a compelling interest,” we said plainly in Hunt, a 1996 case about the Voting Rights Act. 517 U.S. at 909–910. We reached the same conclusion in Croson, a case that concerned a preferential government contracting program. Permitting “past societal discrimination” to “serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantaged group.” 488 U.S. at 505. Opening that door would shutter another—“[t]he dream of a Nation of equal citizens . . . would be lost,” we observed, “in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Id. at 505–506. “[S]uch a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.” Id. at 506.

600 U.S. 181, 226–27 (2023).

       [162].     MacKinnon & Crenshaw, supra note 4, at 351.

       [163].     See Equal Rts. Amend. Project & Racial Just. Project, supra note 72, at 11 (referring to the twentieth century “sex-blind” sex equality paradigm, which the Project argues “has become, in important ways, one of the greatest threats to the promise of sex equality in this country”).

       [164].     Colorblindness purports that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007) (plurality opinion). Thus, any classification or consideration of race presumptively violates equal protection. Students for Fair Admissions, 600 U.S. at 230 (quoting and endorsing Justice Harlan’s dissent in Plessy v. Ferguson, 163 U.S. 537, 559 (1896), stating that “[o]ur Constitution is colorblind, and neither knows nor tolerates classes among citizens”).

       [165].     See generally 999 F.3d 353 (6th Cir. 2021).

       [166].     See President Biden Announces American Rescue Plan, The White House (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/legislation/2021/01/20/president-biden-announces-american-rescue-plan/ [https://perma.cc/RH6R-NVU8].

       [167].     Vitolo, 999 F.3d at 370 (Donald, J., dissenting).

       [168].     See Restaurant Revitalization Fund, U.S. Small Bus. Admin. (Oct. 3, 2024), https://www.sba.gov/fundingprograms/loans/covid-19-relief-options/restaurant-revitalization-fund [https://perma.cc/FJ8L-2QEP].

       [169].     See id.

       [170].     Vitolo, 999 F.3d at 357–58.

       [171].     For example, the government cited evidence that “32% of Hispanic-owned small businesses and 41% of [B]lack-owned small businesses have gone under during the pandemic, compared to only 22% of white-owned small businesses.” Id. at 362.

       [172].     Id. at 364–65.

       [173].     Id. at 361–62. This demonstrates the circular connection between the formalistic, rigid tiers of scrutiny and the nearly impossible to prove intent requirement.

       [174].     Id. at 364.

       [175].     Equal Rts. Amend. Project & Racial Just. Project, supra note 72, at 12.

       [176].     Section Five of the Fourteenth Amendment reads: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” U.S. Const. amend. XIV, § 5.

       [177].     Erwin Chemerinsky & Earl M. Maltz, The Fourteenth Amendment Enforcement Clause: Common Interpretation, Nat’l Const. Ctr., https://constitutioncenter.org/the-constitution/amendments/amendment-xiv/clauses/703 [https://perma.cc/4D6E-KBW8].

       [178].     Before deciding Oregon v. Mitchell, 400 U.S. 112 (1970) and City of Boerne v. Flores, 521 U.S. 507 (1997), the Court afforded Congress “extremely deferential review of federal legislation addressing issues of equal protection, including sex discrimination, whether founded on the commerce or the enforcement power.” In South Carolina v. Katzenbach, 383 U.S. 301 (1996) and Katzenbach v. Morgan, 384 U.S. 641 (1966), the Supreme Court held that Section Five of the Fourteenth Amendment permitted Congress to enact very broad measures to remedy or prevent unconstitutional state actions. Subsequent Supreme Court jurisprudence, however, extended the scope of sovereign immunity and increased the level of scrutiny courts apply to federal legislation enacted under commerce or enforcement powers. Professor Calvin Massey referred to this subsequent jurisprudence as a “New Federalism” that limited Congress’s ability to address problems of sex discrimination and equality. Calvin R. Massey, Congressional Power to Regulate Sex Discrimination: The Effect of the Supreme Court’s “New Federalism,” 55 Me. L. Rev. 63, 64–65 (2003).

       [179].     See Schepard, supra note 122, at 1517–18.

       [180].     400 U.S. at 118 (holding that Congress could not constitutionally require states to allow eighteen-year-olds to vote in state and local elections); see also Chemerinsky & Maltz, supra note 177 (describing the evolution of Supreme Court cases that increasingly narrowed Congress’s enforcement authority under Section Five of the Fourteenth Amendment).

       [181].     Mitchell, 400 U.S. at 126–27 (emphasis added) (citations omitted). This led scholars to believe that “Congress’ power to invade areas reserved to the states is greater when the evil legislated against is race discrimination than when it seeks to remedy any other equal protection problem.” Schepard, supra note 122, at 1517–18.

       [182].     City of Boerne, 521 U.S. at 519–20 (holding that “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end”).

       [183].     Massey, supra note 178, at 68 (emphasis added).

       [184].     See The Civil Rights Cases, 109 U.S. 3, 17–18 (1883) (striking down provisions of the Civil Rights Act of 1875 that outlawed racial discrimination in a variety of private transactions because Section One limits only the power of the states); United States v. Morrison, 529 U.S. 598, 621 (2000) (holding that “the Fourteenth Amendment, by its very terms, prohibits only state action”).

       [185].     529 U.S. at 606, 626–27.

       [186].     Id. at 624–26.

       [187].     Julie C. Suk, Justice Ginsburg’s Cautious Legacy for the Equal Rights Amendment, 110 Geo. L.J. 1391, 1416 (2022).

       [188].     Jessica Neuwirth, Time for the Equal Rights Amendment, 43 Harbinger 155, 157 (2019).

       [189].     Alice Paul Inst., supra note 120. For example, early in his second term, President Trump ordered federal agencies including the DOJ, EEOC, FTC, HUD, and CFPB not to enforce disparate impact claims under civil rights laws such as Titles VI and VII of the Civil Rights Act, calling disparate-impact liability a violation of “the Constitution, Federal civil rights laws, and basic American ideals.” Exec. Order No. 14281, 90 Fed. Reg. 17537 (Apr. 23, 2025); see Daniel Wiessner, Explainer: Why Trump Is Ending Enforcement of Civil Rights Laws that Ban ‘Disparate Impact,’ Reuters (May 5, 2025), https://www.reuters.com/world/us/why-trump-is-ending-enforcement-civil-rights-laws-that-ban-disparate-impact-2025-05-05/ [https://perma.cc/L4AP-MBBV].

       [190].     42 U.S.C. § 2000e(b) defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees.”

       [191].     Virtually every court to consider the issue has held that independent contractors are not employees for purposes of federal employment statutes, including Title VII, the Employee Retirement Income Security Act, and the Age Discrimination in Employment Act. See, e.g., Murray v. Principal Fin. Grp., 613 F.3d 943 (9th Cir. 2010); Barnhart v. N.Y. Life Ins. Co., 141 F.3d 1310 (9th Cir. 1998); Weary v. Cochran, 377 F.3d 522 (6th Cir. 2004); Wortham v. Am. Fam. Ins. Grp., 385 F.3d 1139 (8th Cir. 2004).

       [192].     Yuki Noguchi, Unequal Rights: Contract Workers Have Few Workplace Protections, NPR (Mar. 26, 2018), https://www.npr.org/2018/03/26/593102978/unequal-rights-contract-workers-have-few-workplace-protections [https://perma.cc/9USH-5P2A].

       [193].     U.S. Cts., Annual Report 2024 (2024), https://www.uscourts.gov/data-news/reports/annual-reports/directors-annual-report/annual-report-2024 [https://perma.cc/KH3E-HCK9].

       [194].     Aliza Shatzman, Judges Who Interpret Title VII Should Themselves Be Subject to It, Above the L. (Sep. 5, 2023), https://abovethelaw.com/2023/09/judges-who-interpret-title-vii-should-themselves-be-subject-to-it/ [https://perma.cc/CUC3-MDWU].

       [195].     See, e.g., DeGraffenreid v. Gen. Motors Assembly Div., 413 F. Supp. 142, 143 (E.D. Mo. 1976) (refusing to combine a Black woman’s race and sex to create a new subgroup because doing so would provide Black women with a “super-remedy” that goes beyond the intent of Title VII), aff’d in part, rev’d in part on other grounds, 558 F.2d 480 (8th Cir. 1977). For more on Title VII’s limitations in providing remedies for Black women and other intersectional employees, see Yvette N.A. Pappoe, The Shortcomings of Title VII for the Black Female Plaintiff, 22 U. Pa. J.L. & Soc. Change 1, 1–3 (2019) (arguing that Black women bear the brunt of Title VII jurisprudence that refuses to recognize “multidimensional claims” usually brought by women of color plaintiffs).

       [196].     Pappoe, supra note 195, at 2–3.

       [197].     Serena Mayeri, Intersectionality and Title VII: A Brief (Pre-)History, 95 B.U. L. Rev. 713, 714 (2015); see also Rachel Kahn Best, Lauren B. Edelman, Linda Hamilton Krieger & Scott R. Eliason, Multiple Disadvantages: An Empirical Test of Intersectionality Theory in EEO Litigation, 45 L. & Soc’y Rev. 991, 992 (2011) (finding that “plaintiffs who make intersectional claims, alleging that they were discriminated against based on more than one ascriptive characteristic, are only half as likely to win their cases as are other plaintiffs”); Minna J. Kotkin, Diversity and Discrimination: A Look at Complex Bias, 50 Wm. & Mary L. Rev. 1439, 1440 (2009) (“A sample of summary judgment decisions reveals that employers prevail on multiple claims at a rate of 96 percent, as compared to 73 percent on employment discrimination claims in general.”).

       [198].     29 U.S.C. § 206(d)(1).

       [199].     Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974).

       [200].     Bleiweis, supra note 18; see also Nat’l Women’s L. Ctr., Paycheck Fairness: Closing the “Factor Other Than Sex” Gap in the Equal Pay Act 2 (2009), https://nwlc.org/wp-content/uploads/2015/08/FactorOtherThanSex.pdf [https://perma.cc/5T72-5QAX] (describing court interpretations of the “factor other than sex” defense that have undermined protections against pay discrimination).

       [201].     MacKinnon & Crenshaw, supra note 4, at 355; see Andrea B. Carroll, Family Law and Female Empowerment, 24 UCLA Women’s L.J. 1, 11–22 (2017) (describing how state domestic violence legislation aimed at helping victims has actually impaired some women’s rights). When state statutes are evaluated under a strict scrutiny standard, it is often when courts find that they facially discriminate against men. See, e.g., Michael M. v. Superior Ct. of Sonoma Cnty., 450 U.S. 464 (1981) (upholding a state sexual assault law said to facially apply only to men who had sex with underage girls).

       [202].     Pay Equity Laws by State, Paycor (June 20, 2024), https://www.paycor.com/resource-center/articles/pay-equity-and-state-by-state-laws/ [https://perma.cc/9L85-YM68].

       [203].     Kendall Chapko, How Do Pay Transparency Laws Impact the Gender Pay Gap in the United States? 19–22 (Apr. 17, 2024) (B.A. thesis, Claremont Mckenna College), https://scholarship.claremont.edu/cgi/viewcontent.cgi?params=/context/cmc_theses/article/4726/&path_info=How_do_Pay_Transparency_Laws_Impact_the_Gender_Pay_Gap_in_the_United_States.pdf [https://perma.cc/3WQS-N823].

       [204].     Id.

       [205].     In his concurrence, Justice Kavanaugh stated that “[o]n the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress . . . .” 597 U.S. 215, 338 (2022) (Kavanaugh, J., concurring).

       [206].     States with “very restrictive” policies include Utah, Nebraska, and Georgia. Interactive Map: US Abortion Policies and Access After Roe, Guttmacher Inst. (Mar. 12, 2025), https://states.guttmacher.org/policies?gad_source [https://perma.cc/6DFF-9779].

       [207].     States with the “most restrictive” policies include Alabama, Arkansas, Florida, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia. Id.

       [208].     Mabel Felix & Laurie Sobel, A Year After Dobbs: Policies Restricting Access to Abortion in States Even Where It’s Not Banned, KFF (June 22, 2023), https://www.kff.org/policy-watch/year-after-dobbs-policies-restricting-access-to-abortion/ [https://perma.cc/BQ38-QDQH].

       [209].     Elyssa Spitzer, Tracy Weitz & Maggie Jo Buchanan, Abortion Bans Will Result in More Women Dying, Ctr. for Am. Progress (Nov. 2, 2022), https://www.americanprogress.org/article/abortion-bans-will-result-in-more-women-dying/ [https://perma.cc/Q85C-UNBU]; Hearing Wrap-Up: Zurawski v. State of Texas, Ctr. for Reprod. Rts. (July 21, 2023), https://reproductiverights.org/zurawski-v-state-of-texas-hearing-wrap-up/ [https://perma.cc/DV7X-BNTT] (describing the accounts of women suing Texas over its medical emergency exception to the state abortion ban, including one woman who developed sepsis and almost died after being refused an abortion).

       [210].     Ctr. for Reprod. Rts., The Constitutional Right to Reproductive Autonomy: Realizing the Promise of the 14th Amendment 16 (2022), https://reproductiverights.org/wp-content/uploads/2022/07/Final-14th-Amendment-Report-7.26.22.pdf [https://perma.cc/ND2K-QJTN] (emphasizing the importance of rights to reproductive autonomy and bodily integrity, “including the right to have or not have children, to make one’s own health care decisions related to pregnancy, and the rights to access contraception and abortion”).

       [211].     Id. at 4–5 (describing how laws restricting reproductive autonomy reinforce stereotypes of women as second-class citizens whose primary role is to be a wife and mother and who should not own property, vote, pursue an education, and participate fully in civic life); Abortion Rights and Access Are Inextricably Tied to Equality and Gender Justice, Nat’l Women’s L. Ctr. (Aug. 10, 2022), https://nwlc.org/resource/abortion-rights-and-access-are-inextricably-tied-to-equality-and-gender-justice/ [https://perma.cc/WM3W-DXSN].

       [212].     See, e.g., Michael Milov-Cordoba, Ohio Legislators Target State Judges to Thwart New Constitutional Amendment on Abortion, Brennan Ctr. for Just. (Nov. 20, 2023), https://www.brennancenter.org/our-work/analysis-opinion/ohio-legislators-target-state-judges-thwart-new-constitutional-amendment [https://perma.cc/TJ27-M6DM] (describing how within days of Ohio voters passing a ballot initiative enshrining the right to abortion in the state constitution, the Ohio House of Representatives floated a bill to gut the newly passed constitutional amendment “by stripping Ohio courts of their jurisdiction over legal claims seeking to implement or enforce the [new abortion] amendment and deeming any exercise of such jurisdiction an impeachable offense”).

       [213].     Michael Goldberg, Mississippi Ballot Initiative Proposal Would Not Allow Changes to Abortion Laws, Associated Press (Jan. 24, 2024), https://apnews.com/article/mississippi-ballot-intiative-abortion-2da2169722fc76035d2200f9d3cc3e4c [https://perma.cc/RCK4-E24K].

       [214].     Christine Fernando, Republican Legislatures in Some States Are Trying to Keep Abortion off the Ballot, Associated Press (Jan. 28, 2024), https://apnews.com/article/abortion-ballot-initiatives-voters-democracy-2024-602ebb8a74d7ae45163d79c065a23ef0 [https://perma.cc/C3KM-ZQGV].

       [215].     Family Leave Laws, Movement Advancement Project: Equal. Maps, https://www.lgbtmap.org/equality-maps/fmla_laws [https://perma.cc/X88D-MC25].

       [216].     Id.

       [217].     Nondiscrimination Laws: Housing, Movement Advancement Project: Equal. Maps, https://www.lgbtmap.org/equality-maps/non_discrimination_laws/housing [https://perma.cc/V4W6-RA7K].

       [218].     Nondiscrimination Laws: Public Accommodations, Movement Advancement Project: Equal. Maps, https://www.lgbtmap.org/equality-maps/non_discrimination_laws/public-accommodations [https://perma.cc/G7QP-SNZJ].

       [219].     Nondiscrimination Laws: Credit, Movement Advancement Project: Equal. Maps, https://www.lgbtmap.org/equality-maps/non_discrimination_laws/credit [https://perma.cc/GW6L-GP9F].

       [220].     The original ERA was known as the “Lucretia Mott Amendment” and stated: “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation.” Alice Paul Inst., supra note 120, at 2.

       [221].     Alex Cohen & Wilfred U. Codrington III, The Equal Rights Amendment Explained, Brennan Ctr. for Just. (Jan. 23, 2020), https://www.brennancenter.org/our-work/research-reports/equal-rights-amendment-explained [https://perma.cc/7RXP-DMUB].

       [222].     Paul rewrote the text to its current wording, modeled on the language of the Nineteenth Amendment, stating: “The rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” Alice Paul Inst., supra note 120, at 2–3.

       [223].     Cohen & Codrington, supra note 221:

It didn’t help that for most of the twentieth century, Congress was comprised almost entirely of men. In the nearly five-decade span between 1922 and 1970, only 10 women served in the Senate, with no more than 2 serving at the same time. The picture was only slightly better in the House.

       [224].     Id.

In 1970, a new class of women lawmakers—including Reps. Martha Griffiths (D-MO) and Shirley Chisholm (D-NY)—pressed to make the ERA a top legislative priority. They had to overcome the resistance of Rep. Emanuel Celler (D-NY), the powerful chairman of the House Judiciary Committee who had refused to hold a hearing on the ERA for over 30 years. Faced with increased pressure, Celler finally relented. In March 1972, the amendment passed both chambers of Congress with bipartisan support far exceeding the two-thirds majorities required by the Constitution. Congress promptly sent the proposed amendment to the states for ratification with a seven-year deadline.

See also Caroline Bettinger-Lopez & Delphi Cleaveland, Constitutionalizing Equality: The Equal Rights Amendment as a Catalyst for Change, Council on Foreign Rels. (Sep. 3, 2020), https://www.cfr.org/blog/constitutionalizing-equality-equal-rights-amendment-catalyst-change [https://perma.cc/F28L-8P5Y].

       [225].     Cohen & Codrington, supra note 221.

       [226].     Id.

       [227].     For more on the organizing leading to the modern campaign to ratify the ERA, see Neuwirth, supra note 188, at 157 (describing the roots of the campaign dating back to the ERA Coalition in 2014 as “bringing together various organizations and individuals that had been working steadily for the ERA, in some cases since 1982”). For an account of Black women’s leadership and advocacy in the state legislative debates leading to Nevada, Illinois, and Virginia’s ratification of the ERA, see Julie C. Suk, A Dangerous Imbalance: Pauli Murray’s Equal Rights Amendment and the Path to Equal Power, 107 Va. L. Rev. Online 3, 6–10 (2021). For an argument that Donald Trump’s misogyny galvanized a renewed push for the ERA, see Editorial, A Rebuke to Trump, a Century in the Making, N.Y. Times (Apr. 19, 2018), https://www.nytimes.com/2018/04/19/opinion/a-rebuke-to-trump-a-century-in-the-making.html [https://perma.cc/EM4C-2RBK].

       [228].     Neuwirth, supra note 188, at 157–58.

       [229].     Bill Chappell, Virginia Ratifies the Equal Rights Amendment, Decades After the Deadline, NPR (Jan. 15, 2020), https://www.npr.org/2020/01/15/796754345/virginia-ratifies-the-equal-rights-amendment-decades-after-deadline [https://perma.cc/XLR8-FP8V].

       [230].     This Note does not explore these procedural questions but instead argues that their complexity and uncertainty are one of multiple reasons to reimagine an amendment enshrining equality. For more on the key legal challenges of adopting the ERA as the twenty-eighth constitutional amendment after Virginia’s ratification, see Cohen & Codrington, supra note 221 (describing the two key questions as (1) whether Congress can act now, almost fifty years after first proposing the ERA, to waive the lapsed deadline, and (2) whether states can rescind their support of a constitutional amendment before it is ratified).

       [231].     Statement from President Joe Biden on the Equal Rights Amendment, The White House: Statements & Releases (Jan. 17, 2025), https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2025/01/17/statement-from-president-joe-biden-on-the-equal-rights-amendment/ [https://perma.cc/2YQZ-FLJG].

       [232].     See Press Release, Nat’l Archives, Statement on the Equal Rights Amendment Ratification Process (Dec. 17, 2024), https://www.archives.gov/press/press-releases/2025/nr25-004 [https://perma.cc/4KC3-BML2] (affirming the 1982 ratification deadline set by Congress and stating “the Archivist of the United States cannot legally publish the Equal Rights Amendment”); Peter Baker, Erica L. Green & Annie Karni, Biden Says Equal Rights Amendment Has Passed, but Does Not Force Certification, N.Y. Times (Jan. 17, 2025), https://www.nytimes.com/2025/01/17/us/politics/equal-rights-amendment-constitution-biden.html [https://perma.cc/3N69-ZWK6].

       [233].     For more on the procedural questions surrounding the ERA’s ratification, see John F. Kowal, The Equal Rights Amendment’s Revival: Questions for Congress, the Courts and the American People, 43 Harbinger 141, 141–45 (2019) (analyzing the two procedural questions on which the ERA’s official ratification hinges: Whether states can adopt the amendment thirty-seven years after the deadline Congress set, and whether states can rescind their support of a constitutional amendment before it is ratified).

       [234].     In 2016, the ERA Coalition and Fund for Women’s Equality released a poll finding that 90 percent of Republicans polled support the ERA. ERA Coal., BREAKING: Americans—by 94%—Overwhelmingly Support the Equal Rights Amendment (ERA), PR Newswire (June 17, 2016), https://www.prnewswire.com/news-releases/breaking-americansby-94---overwhelmingly-support-the-equal-rights-amendment-era-300286472.html [https://perma.cc/H33K-9FYZ].

       [235].     Both Illinois and Virginia ratified the ERA in 2020 with GOP support, including that of Illinois State Representative Steve Andersson, a conservative Republican, and Virginia Republican State Senator Glen Sturtevant. In Virginia, seven of the twenty-one Republican legislators voted to ratify. Other efforts to ratify the ERA have emerged in Republican-controlled legislatures in Georgia and South Carolina. Alex Cohen & John F. Kowal, Is the GOP Warming Up to the Equal Rights Amendment?, Brennan Ctr. for Just. (Mar. 19, 2019), https://www.brennancenter.org/our-work/analysis-opinion/gop-warming-equal-rights-amendment [https://perma.cc/3TQL-K8TQ]; Ben Nadler, Georgia Push for Equal Rights Amendment Draws GOP Support, Associated Press (Jan. 30, 2019), https://www.apnews.com/422241d6280f44c19dd70dd6929aa40f [https://perma.cc/53KP-5WLJ].

       [236].     ERA Coal., supra note 234.

       [237].     H.R.J. Res. 17, 117th Cong. (2021) (describing a bipartisan bill introduced in the Senate to eliminate the ERA’s ratification deadline).

       [238].     Lisa Murkowski & Ben Cardin, Opinion, It’s Time to Finally Pass the Equal Rights Amendment, Wash. Post (Jan. 25, 2019), https://www.washingtonpost.com/opinions/its-time-to-finally-pass-the-equal-rights-amendment/2019/01/25/5 [https://perma.cc/82F4-FKHS].

       [239].     Bettinger-Lopez & Cleaveland, supra note 224; see also Isabel Latz, Amy Raub, Adele Cassola, Nicolas de Guzman Chorny, Megan Arthur & Jody Heymann, WORLD Pol’y Analysis Ctr., Equal Rights For Women And Girls in the World’s Constitutions 12 (2014), https://www.worldpolicycenter.org/sites/default/files/WORLD_Policy_Brief_Equal_Rights_For_Women_and_Girls_in_Constitutions_2015.pdf [https://perma.cc/8UY2-3GF2] (“In examining countries’ approaches to protect gender equality broadly, we find that the majority of the world’s constitutions take at least one approach to guaranteeing equality specifically for women in their constitutions (76%) . . . .”).

       [240].     Alice Paul Inst., supra note 120.

       [241].     We Need the Equal Rights Amendment, Equal. Now, https://www.equalitynow.org/we-need-the-equal-rights-amendment/ [https://perma.cc/DK7J-F2NH].

       [242].     As I explain later, raising sex classifications to heightened judicial review may not be desirable because it could make remedial or affirmative measures designed to benefit women harder to enact, as we have seen with race-conscious affirmative action programs.

       [243].     Bettinger-Lopez & Cleaveland, supra note 224; Roberta W. Francis, Frequently Asked Questions, Alice Paul Inst.: ERA, https://www.equalrightsamendment.org/faq [https://perma.cc/7KUN-QFCR] (“For the first time, sex would be considered a suspect classification under the 14th Amendment jurisprudence, as race, religion, and national origin currently are. Governmental actions that treat males or females differently as a class would be subject to strict judicial scrutiny, meaning that they would have to meet the highest level of justification – a necessary relation to a compelling state interest – to be upheld as constitutional.”).

       [244].     Bettinger-Lopez & Cleaveland, supra note 224.

       [245].     Murray, supra note 7, at 258–59 (describing the significance of the ERA offering broader protection than the Fourteenth Amendment for Black women in particular, who would benefit from federal government programs “dealing with housing, health, welfare, education, job training, employment opportunity, and almost every other aspect of their lives”).

       [246].     But see Part II.B (predicting that the ERA would likely not save the provision of the Violence Against Women Act struck down in Morrison because the ERA does not reach private action).

       [247].     Bleiweis, supra note 18.

       [248].     Currently, the federal judiciary is exempted from Title VII, the FMLA, and other federal antidiscrimination laws. An explicit constitutional ban on sex discrimination may bolster Congress’s ability to impose judicial ethics protecting against sex discrimination.

       [249].     See, e.g., Jennifer Weiss-Wolf, The ERA Campaign and Menstrual Equity, 43 Harbinger 168 (2019) (arguing that the ERA would lead to greater access to affordable menstrual products for low-income women and women in correction and detention facilities, schools, and workplaces).

       [250].     Bleiweis, supra note 18.

       [251].     Tara Law, Virginia Just Became the 38th State to Pass the Equal Rights Amendment. Here’s What to Know About the History of the ERA, Time (Aug. 23, 2019), https://time.com/5657997/equal-rights-amendment-history/ [https://perma.cc/PNC5-Q8SE] (describing how protecting women’s rights in the Constitution would have a major cultural impact according to law professor Tracy Thomas: “Once you start changing the culture and the dialogue, things that were acceptable become unacceptable really quickly”).

       [252].     Bleiweis, supra note 18.

       [253].     Neuwirth, supra note 188, at 157.

       [254].     Bleiweis, supra note 18.

       [255].     Kowal, supra note 233, at 147.

       [256].     20 U.S.C. § 1681(a).

       [257].     Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974) (reasoning that because the challenged California insurance program “divides potential recipients into two groups—pregnant women and nonpregnant persons” and “[w]hile the first group is exclusively female, the second includes members of both sexes,” it does not follow that this classification “concerning pregnancy is a sex-based classification”).

       [258].     Pub. L. No. 95-555, 92 Stat. 2076 (codified as 42 U.S.C. § 2000e-2(k)).

       [259].     Kowal, supra note 233, at 148.

       [260].     For more on Pauli Murray’s life and fight for equality, see Philippa Strum, Pauli Murray’s Indelible Mark on the Fight for Equal Rights, ACLU (June 1, 2020), https://www.aclu.org/issues/womens-rights/pauli-murrays-indelible-mark-fight-equal-rights [https://perma.cc/KM3S-GBJS] (describing the discrimination Murray endured on account of both race and gender and Murray’s key role in turning the ACLU’s attention to gender inequality).

       [261].     Murray, supra note 7, at 253.

       [262].     Equal Rts. Amend. Project & Racial Just. Project, supra note 72, at 23 n.56; id. (arguing that “[i]mplicit in the amendment’s guarantee of equality rights without regard to sex is the constitutional recognition of personal dignity which transcends gender,” and thus includes race).

       [263].     Equal Rts. Amend. Project & Racial Just. Project, supra note 72, at 2.

       [264].     Id. at 13.

       [265].     Although the Court “appears to have elevated the test application to sex discrimination cases to require an ‘exceedingly persuasive justification,’” a standard that is “more demanding than intermediate scrutiny used for gender-based classifications since 1967, but less stringent than strict scrutiny.” Cohen v. Brown Univ., 101 F.3d 155, 191 (1st Cir. 1996) (Torruella, C.J., dissenting); Jason M. Skaggs, Justifying Gender-Based Affirmative Action Under United States v. Virginia’s “Exceedingly Persuasive Justification” Standard, 86 Calif. L. Rev. 1169, 1171 (1998).

       [266].     But see Vitolo v. Guzman, 999 F.3d 353, 364–65 (6th Cir. 2021); Brunet v. Columbus, 1 F.3d 390, 403–04 (6th Cir. 1993). Note, also, that the Supreme Court has never examined a gender-based affirmative action program under the Equal Protection Clause. Skaggs, supra note 265, at 1169.

       [267].     See Bettinger-Lopez & Cleaveland, supra note 224.

       [268].     Kim Forde-Mazrui, The ERA’s Threat to Sex Equality, Univ. of Minn.: Gender Pol’y Rep. (July 14, 2020), https://genderpolicyreport.umn.edu/the-eras-threat-to-sex-equality/ [https://perma.cc/N7RJ-PTNM].

       [269].     Cf. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 213–16 (2023) (striking down universities’ race-conscious admissions practices as unlawful race-based discrimination under the Equal Protection Clause). But see Alice Paul Inst., supra note 120 (describing how court decisions in states with ERAs show that the benefits ERA opponents claim women would lose are not in fact lost, but instead “remain constitutional if they are provided in a sex-neutral manner based on function rather than on an assumption of stereotyped sex roles” and arguing that the “same principle would apply to laws and benefits [] at the federal level”).

       [270].     Naomi Schoenbaum, Opinion, The Supreme Court Inadvertently Instituted Affirmative Action for White Men, Politico Mag. (July 19, 2023), https://www.politico.com/news/magazine/2023/07/19/scotus-affirmative-action-admissions-white-men-00106595 [https://perma.cc/7CSS-HDRZ]. See generally Katherine Rainey, Melissa Dancy, Roslyn Mickelson, Elizabeth Stearns & Stephanie Moller, Race and Gender Differences in How Sense of Belonging Influences Decisions to Major in STEM, 5 Int’l J. STEM Educ. 1, (2018) (reporting that women and people of color are largely and historically underrepresented in STEM majors and those who are in STEM majors are less likely to feel they belong).

       [271].     The Eleventh Circuit recently blocked a venture capital fund’s program that awards funding to businesses run by Black women in a lawsuit brought by the same anti-affirmative action activist behind Students for Fair Admissions. His legal claim was based on Section 1981, a Civil War-era law clearly aimed at prohibiting discrimination against Black people; thus, despite the ERA’s clear goal of helping women, a sex-blind amendment would be vulnerable to similar co-opted sex-based challenges. See Nate Raymond, US Appeals Court Blocks Venture Capital Fund’s Grant Program for Black Women, Reuters (Oct. 2, 2023), https://www.reuters.com/legal/us-appeals-court-blocks-venture-capital-funds-grant-program-black-women-2023-09-30/ [https://perma.cc/5FYB-TUGC].

       [272].     NCFM Members File Lawsuit Against Women Only Tech Scholarships – a Man Tax, Nat’l Coal. for Men (June 21, 2018), https://ncfm.org/2018/06/news/discrimination-news/discrimination-against-men-news/ncfm-members-file-lawsuit-against-women-only-tech-scholarships-a-man-tax/ [https://perma.cc/NC4H-FRMC]; Katie Engelhart, Men’s Rights Activists Are Attacking Women’s Scholarships and Programs. The DOE Is Listening, NBC News (Dec. 14, 2018), https://www.nbcnews.com/news/us-news/men-s-rights-activists-are-attacking-women-s-scholarships-programs-n947886 [https://perma.cc/PPA4-VXMU] (“A men’s rights activist who has used federal complaints to target women-only scholarships and programs is now trying to start a national movement to end what he sees as discrimination against men.”).

       [273].     Hannah Levintova, These Men’s Rights Activists Are Suing Women’s Groups for Meeting Without Men, Mother Jones (Jan. 15, 2016), https://www.motherjones.com/politics/2016/01/men-rights-unruh-act-women-discrimination/ [https://perma.cc/CP5M-M2SE].

       [274].     Julie C. Suk, An Equal Rights Amendment for the Twenty-First Century: Bringing Global Constitutionalism Home, 28 Yale J.L. & Feminism 381, 389 (2017) (describing the unfair treatment of pregnant workers that is often legally permissible after the Supreme Court held in Young v. UPS that pregnant workers are entitled to accommodations only to the extent that the employer accommodates other workers similarly situated in their capacity to work). But see Jessica Neuwirth, Equal Means Equal: Why the Time for an Equal Rights Amendment Is Now 49 (2015) (arguing that under the ERA, it would be “impossible to consider the accommodation of pregnancy in the workplace as any kind of ‘preferential treatment’ or discrimination against men. Rather, the failure to accommodate pregnancy would rightly be recognized as a form of discrimination against women that disadvantages them in the workplace and violates their right to sex equality”).

       [275].     Research has shown, for example, that since women undertake a disproportionate share of family care responsibilities, a universal childcare system would boost the collective lifetime earnings of 1.3 million women by $130 billion and improve women’s retirement security. Robert Paul Hartley, Ajay Chaudry, Melissa Boteach, Estelle Mitchell & Kathryn Menefee, Nat’l Women’s L. Ctr., A Lifetime’s Worth of Benefits: The Effects of Affordable, High-Quality Child Care on Family Income, the Gender Earnings Gap, and Women’s Retirement Security 24 (2021), https://nwlc.org/wp-content/uploads/2021/04/A-Lifetimes-Worth-of-Benefits-Compliant.pdf [https://perma.cc/3BJF-NBVS]. While laws such as the Universal Child Care and Early Learning Act introduced by Senator Elizabeth Warren may fail for reasons unrelated to their affirmative benefits for women, childcare laws aimed at benefiting women would likely be struck down under a sex-blind strict scrutiny framework. Aaron Loewenberg, Senator Warren Introduces Ambitious Child Care Bill, New Am. (Feb. 27, 2023), https://www.newamerica.org/education-policy/edcentral/senator-warren-introduces-ambitious-child-care-bill/ [https://perma.cc/X4ZP-ZBKP].

       [276].     Whether single-sex institutions aiming to overcome past discrimination or provide affirmative benefits to women may be subject to challenge under the ERA would likely depend on whether a judge believes such aims are sufficiently compelling state interests.

       [277].     Suk, supra note 274, at 396.

       [278].     See generally Woods v. Horton, 84 Cal. Rptr. 3d 332 (Ct. App. 2008).

       [279].     Id. at 347.

       [280].     See generally Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (applying strict scrutiny and holding that colleges and universities may use race as a factor in admissions decisions to benefit minorities and enhance diversity).

       [281].     Schepard, supra note 122, at 1523.

       [282].     Forde-Mazrui, supra note 268.

       [283].     “In the roughly 60 years since the Civil Rights Movement kickstarted programs to reduce racial and gender discrimination in higher education, women have surpassed men in earning four-year degrees, while Black and Latino students are still underrepresented.” Sophie Gardner, What Women Have Gained from Affirmative Action, Politico (June 16, 2023), https://www.politico.com/newsletters/women-rule/2023/06/16/what-women-have-gained-from-affirmative-action-00102397 [https://perma.cc/ML93-EA7S]; Victoria M. Massie, White Women Benefit Most from Affirmative Action — and Are Among Its Fiercest Opponents, Vox (May 25, 2016), https://www.vox.com/2016/5/25/11682950/fisher-supreme-court-white-women-affirmative-action [https://perma.cc/78WW-8DNH] (noting that white women have primarily been the plaintiffs in major Supreme Court affirmative action cases, with the exception of Regents of the University of California v. Bakke, brought by a white male plaintiff).

       [284].     “Equality of rights under the law shall not be denied or abridged by the United States or by any State . . . .” H.R.J. Res. 208, 92nd Cong. § 1 (1972) (emphasis added).

       [285].     Suk, supra note 274, at 395 (describing the Court’s holding in Morrison striking down a civil damages provision against individuals and reasoning that “[c]ourts could easily take the exact same approach to the ERA, particularly since Section 1 of the ERA only prohibits abridgment of equal rights by the federal and state governments, and not by private actors”).

       [286].     This includes industries as diverse as transportation, manufacturing, accounting, education, warehousing, music, film, and entertainment.

       [287].     Noguchi, supra note 192.

       [288].     Title IX’s prohibition on discrimination in admissions “appl[ies] only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education.” 20 U.S.C. § 1681(a)(1); see also 34 C.F.R. § 106.15 (2024). “The prohibition on discrimination in admissions does not apply to private undergraduate colleges.” Exemptions from Title IX, U.S. Dep’t of Educ. (Mar. 8, 2021), https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/index.html [https://perma.cc/5XNN-K7UB].

       [289].     Suk, supra note 274, at 394.

       [290].     Schepard, supra note 122, at 1522.

       [291].     Id.

       [292].     For a discussion on the “fresh start strategy as an alternative,” including its challenges and distinct advantages, see Kowal, supra note 233, at 146–48 (describing the challenge of winning the support of Congress and the requisite thirty-eight state legislatures but noting that racking up bipartisan support in a relatively short amount of time is possible).

       [293].     Id. at 147.

       [294].     For example, Part III builds on several of the axes Kathleen Sullivan has identified, expanding some of the principles to construct an amendment that enshrines equality for not just women, but also other subordinated groups. See Sullivan, supra note 3, at 747–62 (describing the “five axes of choice in drafting original constitutional sex equality”—generality vs. specificity, symmetry vs. asymmetry, private action vs. state action, negative rights vs. positive rights, and judicially enforceable standards vs. hortatory norms).

       [295].     Id. at 762.

       [296].     Though the text of the Equal Protection Clause broadly affords equal protection of the laws—and thus tends to fall within a general equality framework—as Part I.B.1. outlines, judicially-created Fourteenth Amendment doctrines such as the discriminatory intent requirement and classifications within tiers of scrutiny have hindered the clause’s ability to afford meaningful equality.

       [297].     Sullivan, supra note 3, at 747 (describing, for example, the First Amendment, which speaks of freedom of speech generally, “not the freedom to burn flags or make political contributions or engage in [nude] dancing”).

       [298].     Id.

       [299].     Id.

       [300].     Id. at 748; MacKinnon & Crenshaw, supra note 4, at 358–59.

       [301].     Sullivan, supra note 3, at 748.

       [302].     Id. at 749.

       [303].     Id.

       [304].     Id.

       [305].     Suk, supra note 274, at 386; see also State Constitutions and Sex Discrimination, Ctr. For Reprod. Rts., https://reproductiverights.org/maps/state-constitutions-sex-discrimination/ [https://perma.cc/LT78-3EEY] (identifying state constitutional provisions that protect against discrimination on the basis of sex and other classes).

       [306].     Conn. Const. art. I, § 20.

       [307].     Nev. Const. art. I, § 24.

       [308].     See Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature Mar. 1, 1980, 1249 U.N.T.S. 13 (entered into force Sep. 3, 1981) [hereinafter CEDAW].

       [309].     G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).

       [310].     CEDAW, supra note 308, art. 1.

       [311].     MacKinnon & Crenshaw, supra note 4, at 359 (emphasis added).

       [312].     Id. at 360.

       [313].     See Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 10 (2003) (describing the principle that government may not classify people “either overtly or surreptitiously on the basis of a forbidden category: for example, their race”).

       [314].     Formal equality can be traced back to Aristotle’s dictum that “things that are alike should be treated alike.” Equal Rts. Tr., The Ideas of Equality and Non-Discrimination: Formal and Substantive Equality 2 (2007).

       [315].     Catharine A. MacKinnon, Equality, 149 Dædalus 213, 215 (2020).

       [316].     Sullivan, supra note 3, at 750.

       [317].     MacKinnon, supra note 315, at 215.

       [318].     After Brown v. Board of Education, which recognized discrimination against racial minorities—a class—as the harm,

The Warren Court, responding to criticism that it was not being judicious enough, established the principle that it is classification rather than oppression which the law forbids. . . . Regents of the University of California v. Bakke made clear . . . that the Court perceived no principled distinction between discrimination against members of racial minorities and against the white majority.

Judith A. Baer, Women’s Rights and the Limits of Constitutional Doctrine, 44 W. Pol. Q. 821, 839–40 (1991) (arguing that such court-imposed neutrality is “[d]ictated by no history, language, or logic”). Then, Kahn v. Shevin “made the analogous assumption that discrimination against men was no better or worse than discrimination against women.” See id.; see also Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470, 1473 (2004) (“[M]ost [scholars] would agree that American equal protection law has expressed anticlassification, rather than antisubordination, commitments . . . .”).

       [319].     Siegel, supra note 318, at 1473.

       [320].     Id.

       [321].     See Baer, supra note 318, at 823 tbl. 1 (showing that men brought eighteen of the twenty-six constitutional cases decided by the Supreme Court between 1971 and 1984 when it was developing the unconstitutional sex discrimination doctrine).

       [322].     590 U.S. 644, 660 (2020) (reasoning that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”).

       [323].     MacKinnon & Crenshaw, supra note 4, at 359.

       [324].     Baer, supra note 318, at 837 (describing how more men than women have won cases, how constitutional law has been more adapted to men’s than women’s use, and how “the inequalities which women suffer in this society cannot be expressed in the language of constitutional discourse as well as men’s grievances can be”).

       [325].     Id. at 829.

       [326].     Hans J. Hacker & William D. Blake, The Neutrality Principle: The Hidden Yet Powerful Legal Axiom at Work in Brown versus Board of Education, 8 Berkeley J. Afr.-Am. L. & Pol’y 5, 6 (2006).

       [327].     Baer, supra note 318, at 845 (arguing that because neutral rules and procedures “tend to drive underground the ideologies of the decisionmaker,” neutral principles orient themselves to results—white supremacy and male supremacy—which are not neutral institutions, but rather “institutions of subjection and domination”).

       [328].     Id. at 845.

       [329].     Sarah C. Zearfoss, Note, The Convention for the Elimination of All Forms of Discrimination Against Women: Radical, Reasonable, or Reactionary?, 12 Mich. J. Int’l L. 903, 908 (1991).

       [330].     J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 131 (1994).

       [331].     See, for example, Justice Ginsburg cautioning that special pregnancy benefits or other special assistance with motherhood raise “a troubling concern. Patriarchal rules long sequestered women at home . . . . It is not always easy to separate rules that genuinely assist mothers and their children by facilitating a woman’s pursuit of both paid work and parenting, from laws that operate to confine women to their traditional subordinate status . . . .” Ruth Bader Ginsburg & Deborah Jones Merritt, Affirmative Action: An International Human Rights Dialogue, 21 Cardozo L. Rev. 253, 258 (1999).

       [332].     See Suk, supra note 274, at 398 (describing how several nations’ constitutions include a firm declaration of women’s equal rights separate from a sentence prohibiting government abridgement of rights on account of sex).

       [333].     See Maureen B. Cavanaugh, Towards a New Equal Protection: Two Kinds of Equality, 12 L. & Ineq. 381, 417–24 (1994) (arguing that the Fourteenth Amendment should be interpreted to incorporate both geometric (formal, anticlassification) and arithmetic (substantive, antisubordination) equality to ensure full and equal citizenship and a stable political system in a diverse, pluralistic society in which some groups have been historically excluded from constitutional protection).

       [334].     See id.

       [335].     MacKinnon & Crenshaw, supra note 4, at 358 (proposing a new equality amendment draft).

       [336].     Id. at 360.

       [337].     H.R.J. Res. 33, 115th Cong. § 1 (2017).

       [338].     Kowal, supra note 233, at 147.

       [339].     Canadian Charter of Rights and Freedoms, § 15(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.).

       [340].     Id. § 15(2).

       [341].     Lauren Sudeall Lucas, Opinion, Here’s Why Equal Protection May Not Protect Everyone Equally, Wash. Post (Sep. 23, 2015), https://www.washingtonpost.com/news/in-theory/wp/2015/09/23/heres-why-equal-protection-may-not-protect-everyone-equally/ [https://perma.cc/QYP7-ZM6G].

       [342].     Crenshaw, supra note 77, at 139 (contrasting the multidimensionality of Black women’s experiences with the widely used single-axis analysis that distorts the experiences of Black women).

       [343].     Id. at 140.

       [344].     Id.

       [345].     In DeGraffenreid v. General Motors, a district court held that Black women could not bring a suit against General Motors alleging that the employer’s seniority system perpetuated the effects of past discrimination against Black women. The court said: “[P]laintiffs are clearly entitled to a remedy if they have been discriminated against. However, they should not be allowed to combine statutory remedies to create a new ‘super-remedy’ which would give them relief beyond what the drafters of the relevant statutes intended. Thus, this lawsuit must be examined to see if it states a cause of action for race discrimination, sex discrimination, or alternatively either, but not a combination of both.” 413 F. Supp. 142, 143 (E.D. Mo. 1976).

       [346].     See Moore v. Hughes Helicopter, Inc., 708 F.2d 475, 480 (9th Cir. 1983).

       [347].     See Payne v. Travenol, 673 F.2d 798, 810–11 (5th Cir. 1982).

       [348].     See Moore, 708 F.2d at 480 (declaring that since Moore had never claimed that she was discriminated against as a female but only as a Black female, “this raised serious doubts as to Moore’s ability to adequately represent white female employees”).

       [349].     Devon W. Carbado & Kimberlé W. Crenshaw, An Intersectional Critique of Tiers of Scrutiny: Beyond “Either/Or” Approaches to Equal Protection, 129 Yale L.J.F. 108, 127 (2019).

       [350].     MacKinnon & Crenshaw, supra note 4, at 351.

       [351].     Id. at 358 (emphasis added).

       [352].     Id. at 358–59 (emphasis added).

       [353].     S. Afr. Const., 1996 § 9(3) (emphasis added).

       [354].     See Sullivan, supra note 3, at 759.

       [355].     See MacKinnon & Crenshaw, supra note 4, at 358.

       [356].     International Covenant on Economic, Social and Cultural Rights art. 7, opened for signature Dec. 19, 1966, 993 U.N.T.S. 3.

       [357].     CEDAW, supra note 308, art. 3.

       [358].     Id. art 10.

       [359].     Id. art. 10(h), art. 12.

       [360].     Id. art. 11, § 2(b)–(c).

       [361].     S. Afr. Const., 1996 § 22–23, 25–27; see Mark S. Kende, The South African Constitutional Court’s Embrace of Socio-Economic Rights: A Comparative Perspective, 6 Chap. L. Rev. 137, 138 (2003).

       [362].     See Kende, supra note 361, at 142–50.

       [363].     Id. at 147.

       [364].     MacKinnon & Crenshaw, supra note 4, at 358.

       [365].     Id. (emphasis added).

       [366].     Zearfoss, supra note 329, at 908.

       [367].     See U.S. EEOC, CM-604 Theories of Discrimination (1988), https://www.eeoc.gov/laws/guidance/cm-604-theories-discrimination [https://perma.cc/269J-J9FZ]; Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 337 (1977) (recognizing that the employer engaged in a system-wide pattern or practice of employment discrimination).

       [368].     See 42 U.S.C. § 2000e-2(k); Griggs v. Duke Power Co., 401 U.S. 424, 430–36 (1971) (holding that Title VII prohibits neutral employment policies and practices that, regardless of intent, result in discrimination on the basis of a protected trait).

       [369].     CEDAW, supra note 308, art. I (emphasis added).

       [370].     S. Afr. Const., 1996 § 9(3), (4) (emphasis added).

       [371].     MacKinnon & Crenshaw, supra note 4, at 358.

       [372].     Id. at 358, 361.

       [373].     See Clyatt v. United States, 197 U.S. 207, 216 (1905) (stating that unlike the prohibitions of the Fourteenth and Fifteenth Amendments that bind state action, the Thirteenth Amendment names no party or authority but simply forbids slavery and involuntary servitude).

       [374].     See Sullivan, supra note 3, at 755.

       [375].     Id.

       [376].     Id. at 756–57.

       [377].     Id.

       [378].     Zearfoss, supra note 329, at 908.

       [379].     Id.

       [380].     The Supreme Court’s balancing of private individuals’ rights in the First Amendment context provides some sense of how it, and other federal courts, might adjudicate claims between private individuals in the context of an equality amendment. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 584 U.S. 617, 634–38 (2018) (holding that the Colorado Civil Rights Commission’s conduct in evaluating a cake shop owner’s reasons for declining to make a wedding cake for a sample-sex couple violated the First Amendment Free Exercise Clause’s religious neutrality requirement); 303 Creative, LLC v. Elenis, 600 U.S. 570, 588 (2023) (holding that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs that convey messages with which the designer disagrees, namely the marriage of a same-sex couple).

       [381].     Lillian BeVier & John Harrison, The State Action Principle and Its Critics, 96 Va. L. Rev. 1767, 1835 (2010) (arguing that “[l]egislatures are the appropriate bodies to make important decisions about the law,” including substantive principles like free expression and antidiscrimination).

       [382].     CEDAW, supra note 308, art. I (emphasis added).

       [383].     S. Afr. Const., 1996 § 9(4) (emphasis added).

       [384].     Mont. Const. art. II, § 4 (emphasis added); see also Tia Rikel Robbin, Untouched Protection from Discrimination: Private Action in Montana’s Individual Dignity Clause, 51 Mont. L. Rev. 553, 553 (1990) (arguing that although the prohibition on discrimination by private parties has remained dormant, the Montana state constitution “has the potential of providing [the guarantee of individual dignity] to a larger number of individuals than does any other state constitution”).

       [385].     See, e.g., Alaska Const. art. I, § 3 (“No person is to be denied the enjoyment of any civil or political right because of race, color, creed, sex, or national origin.”); Haw. Const. art. I, § 5 (“No person shall . . . be denied the enjoyment of the person’s civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.”)

       [386].     According to its drafters, this is “[b]ecause women are not exclusively, or even principally, made or kept unequal to men by the actions of states, but rather by the social order—its structures, forces, institutions, and individuals acting in concert.” MacKinnon & Crenshaw, supra note 4, at 358.

       [387].     Julie Goldscheid, Qualified Immunity, Supervisor Liability, and Gender Violence: Barriers to Accountability, 59 Cal. W. L. Rev. 51, 58 (2022) (noting that police officers commit sexual assault at a higher rate than the general population).

       [388].     See id. at 62–64; Jay Schweikert, Qualified Immunity: A Legal, Practical, and Moral Failure, CATO Inst. (Sep. 14, 2020), https://www.cato.org/policy-analysis/qualified-immunity-legal-practical-moral-failure [https://perma.cc/X82A-QG4X]; Lynette Christmas, Opinion, A Bad Cop Sexually Assaulted Me. Qualified Immunity Protected Him and His Boss, USA Today (Sep. 19, 2021), https://www.usatoday.com/story/opinion/voices/2021/09/19/qualified-immunity-cop-sexual-assault-lynette-christmas/8240249002/ [https://perma.cc/36KG-LTSS].

       [389].     MacKinnon & Crenshaw, supra note 4, at 361 (emphasis added).

       [390].     The Thirteenth, Fourteenth, and Fifteenth Amendments all state that “Congress shall have the power to enforce” the amendment. U.S. Const. amend. XIII, § 2; id. amend. XIV, § 5; id. amend. XV, § 2.

       [391].     MacKinnon & Crenshaw, supra note 4, at 362.

       [392].     See City of Boerne v. Flores, 521 U.S. 507, 519–20 (1997) (holding that based on the history of the Fourteenth Amendment and case law, Congress may enact remedial, but not substantive, measures).

       [393].     Members of the Thirty-Ninth Congress drafting what would become the Fourteenth Amendment objected to the Committee’s first draft of the Amendment that granted Congress power to make laws “to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection.” See Cong. Globe, 39th Cong., 1st Sess. 1034 (1866). Liberals and conservatives alike expressed concerns that “the proposed Amendment would give Congress a power to intrude into traditional areas of state responsibility, a power inconsistent with the federal design central to the Constitution.” See City of Boerne, 521 U.S. at 521.

       [394].     Oregon v. Mitchell, 400 U.S. 112, 128 (1970).

       [395].     Note, Reconciling State Sovereign Immunity with the Fourteenth Amendment, 129 Harv. L. Rev. 1068, 1068–69 (2016).

       [396].     Id. at 1069.

       [397].     Fitzpatrick v. Bitzer, 427 U.S. 445, 453, 455 (1976) (analyzing the Fourteenth Amendment’s text and determining that it “quite clearly contemplates limitations on [states’] authority” and a “shift in the federal-state balance”).

       [398].     Id. at 456.

       [399].     U.S. Const. amend. XIII, § 2; id. amend. XIV, § 5; id. amend. XV, § 2.

       [400].     Oregon v. Mitchell, 400 U.S. 112, 128 (1970).

       [401].     See United States v. Morrison, 529 U.S. 598, 617–19 (2000) (declaring that the civil remedy provision of the Violence Against Women Act was unconstitutional).

       [402].     See Shelby Cnty. v. Holder, 570 U.S. 529, 556–57 (2013) (declaring that the Voting Rights Act’s coverage formula and preclearance requirement were unconstitutional).

       [403].     See City of Boerne v. Flores, 521 U.S. 507, 534–36 (1997).

       [404].     MacKinnon & Crenshaw, supra note 4, at 361.

       [405].     A 2016 poll commissioned by the Equal Rights Amendment Coalition suggests that 80 percent of Americans believe that the Constitution guarantees equal rights to men and women. Nicole Tortoriello, Making the Case for the Equal Rights Amendment, ACLU Va. (Jan. 3, 2019), https://acluva.org/en/news/making-case-equal-rights-amendment [https://perma.cc/K8JG-Y2YA].

       [406].     See Catharine A. MacKinnon, Gender in Constitutions, in The Oxford Handbook Of Comparative Constitutional Law 397, 404 (Michel Rosenfeld & András Sajó eds., 2012) (noting that the U.S. Constitution only has abstract grants of equality unlike most other countries’ constitutions).

       [407].     MacKinnon & Crenshaw, supra note 4, at 364.