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Analysis

Want Gender Equality? Don’t Overlook State Constitutions

A majority of states have gender equality provisions in their constitutions — and more states could soon.

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Advocates for gender equality have been fighting for over a century to codify the federal Equal Rights Amendment in the U.S. Constitution. But as work to achieve a federal constitutional amendment continues, a majority of states have already enshrined gender equality provisions in their constitutions. It’s one of many areas where state constitutions are important — and often underappreciated — sources of rights protection.

And that’s a vital observation. As the conservative supermajority on the Supreme Court increasingly claws back civil rights protections — including overruling abortion rights this past June in the Dobbs decision — state constitutions can be a vital counterbalance.

Last week, on Women’s Equality Day, the Brennan Center, Ms. magazine, and the ERA Project at Columbia Law School published a resource summarizing the gender equality provisions that exist in state constitutions. We found that 21 states have comprehensive Equal Rights Amendments in their constitutions, explicitly barring the denial of equal rights under the law on the basis of sex. Six additional states have constitutional provisions that prohibit gender discrimination in certain circumstances. (State constitutions can also protect against discrimination through provisions that do not explicitly address sex or gender.)

Most states added Equal Rights Amendments to their constitutions in the 1970s during the push for ratification of the federal Equal Rights Amendment, while a handful adopted them in the decades that followed. Two Western states, Utah and Wyoming, have had such provisions since the 1890s, when their state constitutions were first adopted.

One of the most significant ways that state constitutions differ from the U.S. Constitution is that it is far easier to change them. Currently, five states have active campaigns to add Equal Rights Amendments to their constitutions. New York, for example, advanced an Equal Rights Amendment through the state legislature in July as part of an effort to enshrine a right to abortion and contraception in its constitution after the Supreme Court’s decision in Dobbs. In order to become law, it must pass a second time in the next legislative session in 2023 and appear on the ballot. This fall, Nevadans will vote on a ballot question that could amend their constitution to add an Equal Rights Amendment.

These state-level constitutional provisions can be important sources of individual rights. In some states, for example, ERAs have been the basis for finding a right to marriage equality for same-sex couples and for prohibiting restrictions on abortion funding in state Medicaid programs. At the same time, many states have little to no jurisprudence interpreting their Equal Rights Amendments. At a moment when federal courts are becoming hostile to many civil rights, these state gender equality provisions are likely to take on greater prominence.

The fight for civil rights is always a struggle. As federal rights are being eroded by an increasingly radical Supreme Court, state courts and constitutions are a critical space for advancing gender equality.