Putting State Equal Rights Amendments to Work

In a country where the federal Constitution fails to guarantee sex equality, state Equal Rights Amendments (ERAs) and local laws have become essential safeguards for democracy. 

New York was one of several states to pass an amendment enshrining abortion rights into the state constitution last month — and the only one to do so with an inclusively worded ERA. Whereas other amendments simply recognize the right to an abortion, the New York ERA goes farther by guaranteeing equal protection under the law and prohibiting discrimination based on “race, color, ethnicity, national origin, age, disability, creed, religion, or sex, including protections for sexual orientation, gender identity, pregnancy, reproductive healthcare, and autonomy.” Because of its expansive reach, it has the capacity to not only protect reproductive rights but root out and address existing discrimination in the state. With this amendment, New York joins 28 other states with explicit provisions for sex equality in their state constitutions. 

The amendment will go into effect in January, providing an extra layer of protection for New Yorkers as federal officials, lawmakers, and the Supreme Court’s conservative supermajority threaten long-standing protections for reproductive healthcare and other sex equality rights. 

The movement for inclusive, intersectional ERAs — that is, ERAs that address the ways that sex intersects with race, class, and other identities to compound injustice — is growing. Campaigns for constitutional equality reforms are ramping up in states across the country including Ohio, Minnesota, and Maine. But enshrining these principles in a constitution is only the first step — the principles must be put into action in laws, policies, and by the courts. The growing number of state constitutions with explicit sex equality provisions can serve as a catalyst for a nationwide shift toward a modern standard of sex equality only if these provisions are implemented substantively and with urgency.

To adequately address inequality, state and local governments should focus on the needs of the most marginalized populations, including Black women and LGBTQ+ individuals, who are disproportionately impacted. While state ERAs have already led to significant wins — particularly in challenging Medicaid funding bans on abortion in Pennsylvania and Nevada — they remain underutilized as a tool for advancing gender-based justice across a range of issues. 

Columbia Law School’s ERA Project, where we work, joined Nevada elected officials, advocates, and organizers in Las Vegas on September 17 — Constitution Day — to unveil a roadmap to help state and local leaders put their ERA (passed in 2022) into practice. Our model policy agenda outlines a range of strategies for governors, mayors, attorneys general, and agency heads to leverage their executive powers and bring substantive gender justice to the forefront. Realizing the full potential of state ERAs requires integrating sex equality principles at every stage of policymaking and addressing the entrenched disparities in access to resources, information, and political power.

The agenda proposes three key recommendations for state and local leaders to assess, remedy, and prevent inequality. First, it calls for “gender impact assessments” to evaluate how current and proposed legislation, policies, services, and budgets reinforce (or combat) the subordination of groups of people based on sex and intersecting identities. Second, it suggests states create oversight bodies to interpret and enforce state ERAs, ensuring that these principles are implemented consistently and effectively across all levels of government. Third, it lays out a set of ambitious affirmative policy initiatives rooted in the understanding that achieving true equality requires more than enacting legal equality. States need to develop policies that directly improve people’s lives by addressing barriers to gender justice, such as paid family leave, accessible childcare, reproductive rights and healthcare, and safety from gender-based violence.

The initiative proposes a bold vision to build “a more just and equitable world, where sex equality is not just an idea but a reality,” said Nevada state Sen. Dallas Harris (D).

State ERAs offer a crucial opportunity to address inequality in ways the federal Constitution does not. Under the current federal framework, equality is defined as treating everyone the same — despite glaring and persistent social and economic disparities. This narrow interpretation perpetuates inequality. For example, in 2021 the U.S. Court of Appeals for the Sixth Circuit struck down a provision of the Covid-19 federal relief package that fast-tracked applications from women and people of color-owned restaurants for federal aid. Despite overwhelming evidence that the policy was needed to address the disproportionate harm suffered during the pandemic by women and POC-owned businesses, the decision in Vitolo v. Guzman applied the prevailing formal equality framework and held that the provision unconstitutionally discriminated against the white, male plaintiff. 

In contrast, state ERAs rooted in a substantive equality framework allow governments to actively dismantle structural inequities. The New York ERA exemplifies this shift by affirming the duty of lawmakers to specifically consider whether policies discriminate against groups that have been historically disadvantaged. State courts in Connecticut, New Mexico, and Pennsylvania have already acknowledged that state ERAs should not be interpreted in lockstep with the federal Constitution, recognizing that transformative policies are within reach at the state level.

Constitutional guarantees of sex equality should not stand as mere symbolic gestures of equality. They must be put to work through concrete policy change, and only then can we begin to move toward a society where gender justice is a reality.

Ting Ting Cheng is the director of the ERA Project at Columbia Law School’s Center for Gender and Sexuality Law. Naomi Young is a law and policy associate at the center.

Suggested Citation: Ting Ting Cheng & Naomi Young, Putting State Equal Rights Amendments to Work, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Dec. 5, 2024), https://statecourtreport.org/our-work/analysis-opinion/putting-state-equal-rights-amendments-work