New Equal Rights Amendment Law Suit Could Hurt, Not Help, Females; Consequences are Unpredictable, and Several Appear Negative
WASHINGTON, D.C. (February 3, 2020) – A newly filed law suit to force the government to add the Equal Rights Amendment to the Constitution since Virginia ratified it, although the congressionally imposed deadline for ratification has expired, may hurt rather than hurt women and girls rather than help them, suggests public interest law professor John Banzhaf.
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The law suit seeks to force the National Archivist, who is charged with certifying the ratification of constitutional amendments, to officially add the Equal Rights Amendment to the Constitution despite a Justice Department memo which said he should not do so because the 1982 deadline for ratification of this amendment has long since passes.
Although the amendment is promoted as a step towards protecting the rights of women, including limiting discrimination against them, experts are divided as to what effects it might have, says Banzhaf, who has won over one hundred legal actions aimed at illegal discrimination against women, and whose actions also forced the admission of the first women to a formerly all-male state school, and to the previously all-male Cosmos Club.
Although there is disagreement among many experts as to what effects such a constitutional amendment might have, at least two things do seem very clear.
Impacts of Adding Equal Rights Amendment to the Constitution
First, constitutional protections against discrimination, whether based upon race or sex, only apply directly to federal, state and local governmental bodies, including schools.
These constitutional protections do not apply - with rare exceptions - directly to private businesses, private universities, and other non-governmental entities.
So any sex discrimination by private entities which now occurs would not disappear, be decreased. nor even become any more illegal, simply because a constitutional amendment such as the Equal Rights Amendment purports to prohibit it.
In the private sector, protection against discrimination based upon race, religion, national origin, and sex is provided, however, by federal, state, and local statutes and regulations, not the Constitution.
But, unfortunately for those such as Banzhaf and many women's rights groups which oppose discrimination based upon sex, these non-constitutional protections can often can be changed, weakened, or perhaps even eliminated by a simple majority vote.
A second clear effect of adding the Equal Rights Amendment to the Constitution is that it would provide some legal protection against discrimination by governmental bodies, even if legislators decide for whatever reasons to weaken existing laws and regulations limiting it. So much for what is clear about the ERA.
Another impact of the ERA is that it might change the standards for determining when discrimination based upon sex, at least by governmental bodies, is illegal, since not all governmental distinctions - whether based upon race, national origin, or sex - is always prohibited by the Constitution.
The Constitution provides that no person shall be denied the "equal protection" of the law, but obviously not all laws or governmental distinctions based upon race or sex are unconstitutional. Indeed the standard for making that judgment with regard to "race" and to "sex" are significantly different.
What an Alleged Discrimination is Based Upon
Alleged discrimination based upon race is judged by a very different and much tougher standard that alleged discrimination based upon sex. In other words, some distinctions based upon race which would almost certainly be held to violate equal protection could be perfectly legal if the same distinction were to be based upon sex rather than race.
More precisely, to survive a court challenge, a statute or governmental action which differentiates on the basis of race will be permitted to stand only if it passes the "strict scrutiny" test: it must serve a COMPELLING governmental interest, and the classification must be NECESSARY to serving that interest. [emphasis added]
In contrast, a statute or governmental action which differentiates on the basis of sex need only pass a less exacting "intermediate scrutiny" test: it need only serve an IMPORTANT governmental interest, and the classification need only be SUBSTANTIALLY RELATED to serving that interest. [emphasis added]
So at this time it is easier to defend the constitutionality of existing laws and governmental actions designed to help women, including some which may provide preferential treatment.
Thus, one likely impact of the Equal Rights Amendment would be for the Supreme Court to decide that the same test - strict scrutiny - must begin to apply to alleged discrimination based upon sex as it now applies to alleged discrimination based upon race.
The New Compelling and Necessary Standard
Under this new "compelling and necessary" standard, and considering the progress women and women's rights have made recently, it might not be possible for these various laws and governmental regulations and programs which give females an advantage to survive constitutional scrutiny. In other words, it is likely that a court would now find that such preference and other advantages are no longer absolutely "necessary" to achieve a governmental interest which would still be judged to be "compelling."
If this change in the standard is construed by judges to also apply even to governmental actions which have only the effect or consequence of differentiating on the basis of sex - even if sex was not specifically or expressly spelled out - the effect could be even more far reaching.
Federal law
Also, if the "compelling and necessary" standard were also to be applied to federal and state laws which prohibit discrimination on the basis of race and sex by private institutions as well as public ones, all-female colleges, to take only one example, might no longer be permitted.
Most experts seem to agree that an ERA would mean the end to current selective service laws which require only males to register for the draft. However, in fairness, the same result could well occur - and there is a law suit presently raising this very issue - even without an ERA now that women are permitted to serve virtually everywhere in the armed forces if they meet the physical and other qualifications.
The impact of the Equal Rights Amendment on the tradition of separate restrooms for males and females, although such separate restroom facilities for blacks and whites is clearly illegal, is subject to some debate.
But since so many college dormitories - and now even some restaurants - have coed restrooms, female sports reporters are permitted in the male locker rooms, and women serve as guards in men's prisons where they may have to observe inmates naked, it might be increasingly difficult to argue that mandating separate restroom facilities serves an interest which is still "compelling" rather than simply "important," and that it is still "necessary."
Equal Rights Amendment: Preserving Bodily Privacy
The problem can become even more complicated and controversial if these new standards are applied to separate sex-segregated showers, changing areas, and locker rooms. In such places it is more difficult to preserve bodily privacy since, unlike toilets which are in stalls, showers and locker rooms may provide much less if any protection from observation for patrons who are nude or in their underwear.
Another area in which an Equal Rights Amendment might have an impact could be with regard to sex-based or sex-specific legal standards. For example, in judging whether someone was negligent (e.g., as a driver involving in an automobile accident), the legal standard is what a "reasonably prudent person" would have done under similar circumstances.
The standard, and the law of negligence in general, don't distinguish between a "reasonable prudent female driver" and a "reasonably prudent male driver," any more than it would base a standard upon a "reasonably prudent Black driver," a "reasonably prudent Jewish driver," a "reasonably prudent Asian driver," etc.
Conclusion
Yet, in many sexual harassment proceedings, courts adopt a sex-specific standard by asking whether the conduct in question would be (or would have been) offensive to a "reasonable woman," rather than simply to a "reasonable person" - the sex-neutral standard applied in most other legal situations. The ERA might just change that.
If so, women who complain that things which they find offensive, abusive, and/or otherwise constitute sexual harassment - including common examples such as cursing or otherwise using vulgarity, discussing matters related to sex, posting nude or sexually provocative pictures or cartoons, commenting about attire and attractiveness, and even staring, etc. - might have a harder time winning their cases.
In summary, while the issue of whether the Equal Rights Amendment should become part of the Constitution appears to be one involving strictly legal issues regarding ratification, the fact that experts apparently cannot agree on the likely effects of the ERA, and that some of the effects might be seen as more harmful than helpful for women's rights, is a point that proponents might wish to consider, suggests Banzhaf.
