The Gender Gap Runs Deep in American Law
By Martha Burk and Eleanor Smeal
Friday, April 27, 2007
The Washington Post
Some members of Congress are looking to do something long overdue: pass the Equal Rights Amendment. Recently renamed the Women's Equality Amendment and introduced by its chief sponsors, Rep. Carolyn Maloney (D-N.Y.) and Sen. Edward Kennedy (D-Mass.), the amendment would grant equal constitutional rights to women -- something we have yet to achieve. This simple concept had the blessing of both political parties until the Republicans struck it from their platform in 1980, with the Democrats following suit in 2004.
Why is the amendment needed? Twenty-three countries -- including Sri Lanka and Moldova -- have smaller gender gaps in education, politics and health than the United States, according to the World Economic Forum. We are 68th in the world in women's participation in national legislatures. On average, a woman working full time and year-round still makes only 77 cents to a man's dollar. Women hold 98 percent of the low-paying "women's" jobs and fewer than 15 percent of the board seats at major corporations. Because their private pensions -- if they have them at all -- are lower and because Social Security puts working women at a disadvantage and grants no credit for years spent at home caring for children or aging parents, three-quarters of the elderly in poverty are women. And in every state except Montana, women still pay higher rates than similarly situated men for almost all kinds of insurance. All that could change if we put equal rights for women in our Constitution.
Some say action isn't needed because the equal protection clause of the 14th Amendment already guarantees rights for women. It would be great if that were so. But courts have failed to hold sex discrimination to the same level of scrutiny under the 14th Amendment as is applied, for example, to race discrimination, meaning that many discriminatory practices -- barring women from certain military jobs, establishing boys-only public classrooms and schools, and open discrimination against women in insurance programs, to name a few -- are still legal.
Yes, we have laws outlawing sex discrimination. But a law is only as strong as the next Congress and president. Laws and regulations guaranteeing protection against sex discrimination can be overturned by a simple majority in Congress or by the president. Courts have narrowed protections originally guaranteed by statute, resulting in women having to campaign constantly to restore these rights when they're taken away or weakened. What's more, federal laws have usually been narrowly crafted and don't reach into many areas in which state laws discriminate against women and girls.
The history of Title IX, the law guaranteeing equal educational opportunities for girls and women, is an instructive example. Passed in 1972, it opened colleges, law schools, medical schools and athletic opportunities to women at institutions receiving federal funds. Opponents fought its implementation from the beginning, and in 1984 they succeeded in gutting the law. The Supreme Court's decision in Grove City v. Bell declared that only individual programs receiving federal funds were subject to the law, not institutions as a whole. Women's groups had to mount a four-year fight to pass legislation overturning Grove City and restoring the original intent of Title IX. With a patchwork of state and federal laws that provide only statutory guarantees and many loopholes, the job is never done. The Bush administration has also weakened Title IX through a backdoor provision in the No Child Left Behind Act that permits the creation of sex-segregated public schools for little or no reason.
The ERA was ratified by 35 states before the time limit contained in its preamble was reached. Even though it has been reintroduced in every congressional session since, there has been no action since the 1980s -- until now.
Whether the Women's Equality Amendment must be passed with a new drive for 38 states, as opponents declare, or by merely adding three states to the 35 that have already ratified the amendment (the women's movement is pursuing both avenues) is irrelevant to the central truth: We need women's constitutional equality in this country. Women are not, and cannot be, legally equal to men without it. The United States must declare that women are equal under the law, no matter which state we live in, without reservation.
Ninety percent of Americans believe that the Constitution should make it clear that women and men have equal rights, according to a 2001 poll, and it won't cost taxpayers a dime. It will benefit not only the women of the United States but also the men, in this and all generations to come. That would be a real legacy for the new Congress.
Martha Burk directs the Corporate Accountability Project for the National Council of Women's Organizations. Eleanor Smeal is president of the Feminist Majority.