Virginia Just Passed It, But the Effects of the ERA Are Unclear

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Virginia Just Passed It, But the Effects of the ERA Are Unclear; Should Standards for Race and Sex Discrimination Now Be The Same?

WASHINGTON, D.C. (January 22, 2020) – Virginia has just become the 38th state to ratify the Equal Rights Amendment [ERA] which means that it might – depending on a number of vexing legal issues – become part of the Constitution.  Although it was advanced primarily to protect the rights of women, it might have much less of that effect than many people are hoping for, and could even backfire, says public interest law professor John Banzhaf, who has won over one hundred legal actions aimed at illegal discrimination against women.

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ERA bill explained

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.

FIRST, constitutional protections against discrimination, whether based upon race or sex, only apply - with rare exceptions - directly to federal, state and local governmental bodies, including schools, and do not apply directly to private businesses, schools, and other private entities.  So any discrimination by private entities would not disappear, nor even become any more illegal, simply because a constitutional amendment such as the ERA would prohibit it.

In the private sector, protection against discrimination based upon race, religion, national origin, and sex is provided by statutes and regulations which often can be changed, weakened, or perhaps even eliminated by a simple majority vote.  So that leads to the second clear effect if the ERA becomes part of the Constitution.

SECOND, one clear effect of an ERA in the constitution is that there would be some legal protection against sex discrimination no matter what legislative bodies might do, at least with regard to governmental bodies.  So much for what is clear.

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 discrimination or 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. But the standard for making that judgment with regard to "race" and to "sex" are significantly different.  Indeed, alleged discrimination based upon race is judged by a very different and tougher standard that alleged discrimination based upon sex.

To survive a court challenge, a statute or governmental action which differentiates on the basis of race will be permitted to stand only if the passes the "strict scrutiny" test: it must serve a COMPELLING governmental interest, and the classification must be NECESSARY to serving that interest. [emphasis added]

On the other hand, 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 laws and governmental action designed to help women - including various affirmative action policies which may give preferences to women, require contractors to seek out businesses owned by women, etc. - because the interest being served need only be "important" and not "compelling," and the remedy chosen need only be "substantially related" to that interest and not "necessary" to serving it.

A likely impact of the ERA would be for the Supreme Court to decide that the same test - strict scrutiny - must begin to apply to sex as it now applies to race and several other forms of discrimination.

Under this standard, and especially 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; 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 to also apply even to governmental actions which had 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; e.g., on some of the standards and procedures state universities apply in handling allegations of date rape which usually involve complainants who are female, and respondents who are male and allegedly being disadvantaged.

If the same test or 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 the all-male draft, although that would probably occur even without an ERA now that women are permitted to serve virtually everywhere in the military if the meet the physical and other qualifications.

The anticipated impact of the ERA 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, women serve as guards in men's prisons where there are often no private restroom facilities, and people with the sex organs of one gender are frequently permitted to use the restroom assigned to people with the sex organs of the other gender if they claim to be transgender, it might be increasingly difficult to argue that mandating separate restroom facilities still serves an interest which is still "compelling" rather than simply "important," and that it is still "necessary."

The problem can become even more complicated and controversial if these new standards are applied to the custom of having separate sex-segregated showers, changing areas, and locker rooms where it's much harder to preserve bodily privacy.

Another area in which an ERA might have an impact could be with regard to sex-based or sex-specific standards.

For example, in judging whether someone was negligent (e.g., driving an automobile), the legal standard is what a "reasonably prudent person" would have done under the same or similar circumstances.  We don't distinguish between a "reasonable prudent female driver" and a "reasonably prudent male driver," any more than we would base a standard upon a "reasonably prudent Black driver," a "reasonably prudent Jewish driver," a "reasonably prudent Asian driver," etc.

Yet, in many sexual harassment proceedings, courts ask 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.  Although there are strong arguments that many things of a sexual nature might be offensive and/or abusive to most reasonable women while they would not be to most reasonable men, this differentiation by the government might no longer be permitted if "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex," suggests Banzhaf.

About the Author

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW, Wash, DC 20052, USA (202) 994-7229 // (703) 527-8418