Even Without ERA, Male-Only Military Draft Ruled Unconstitutional; Effects of Amendment Unclear, As Is Even The Definition of “Sex”
WASHINGTON, D.C. (February 25, 2019) – Even though the Equal Rights Amendment [ERA] was never added to the U.S. Constitution, a federal judge has just held that, contrary to a U.S. Supreme Court ruling to the contrary, the current federal law mandating registration for the military draft by males but not females constitutes unconstitutional discrimination on the basis of sex.
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This is just the most recent example that the Constitution already provides substantial protection against discrimination based upon sex like the military draft, and that the added benefit which may come if the ERA is finally ratified is unclear, says public interest law professor John Banzhaf, who has won over 100 cases of illegal discrimination against women and girls.
The Constitution prohibits denials or abridgment of equal protection, and this includes denials or abridgment based upon sex as well as on race. While the standards for judging denial of equal protection based upon race and sex do differ somewhat, the gap is small and apparently already narrowing.
As law professor Ilya Somin noted, "since 1981, the Supreme Court has taken a tougher line against sex-discriminatory laws and policies, making intermediate scrutiny almost as stringent as the 'strict' scrutiny applied to laws that discriminate on the basis of race and ethnicity. Most notably, the Court invalidated the exclusion of women from the Virginia Military Institute [VMI] in the 1996."
Banzhaf, who helped get the first woman admitted to a previously all-male state college even before the VMI decision, suggests that, for this reason, the practical effect of adding ERA to the Constitution may be less than many are hoping for.
The Constitution has long prohibited denial or abridgement of rights based upon race, but that doesn't mean that African Americans enjoy equality with regard to income, housing opportunities, health care, acts of violence, or other forms of discrimination, notes Banzhaf.
Moreover, he argues, most legal actions to protect against such discrimination are based not on constitutional guarantees, but upon specific anti-discrimination statutes which would not necessarily be affected by the passage of the ERA.
In other words, making discrimination illegal, much less simply making it unconstitutional, doesn't make it go away, he says,
Current cases such as military draft which might be affected by the ERA include questions such as whether women but not men can be prohibited from being topless in public, whether certain laws or practices relating to child custody and support are unconstitutional, the legality of different maternal leave and paternal leave policies, and even whether anatomical males can lawfully be excluded from female restrooms, suggests Banzhaf.
With regard to the latter, he notes, there might be questions about whether the word "sex" in the ERA - which reads "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex" - refers to anatomical or biological sex, or whether, as some courts have ruled, it also refers to issues of "sexual identity."
In other words, in addition to protecting traditional women from governmental discrimination, might it also protect anatomical males who believe themselves to be females - and, if so, what would be the scope of that protection, Banzhaf asks.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
