“Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.” Pa. Const. art. I, § 28 (1971).
The Pennsylvania ERA passed on May 18, 1971, with 783,441 votes in favor, 464,882 against. Prior to that election, Pennsylvania had just elected Milton Shapp, one of Pennsylvania’s most progressive governors at the time, who strongly urged voters to approve the amendment.
Pennsylvania has been a leader in using its ERA to strike down laws that perpetuate unequal treatment: “The sex of citizens of this Commonwealth is no longer a permissible factor in the determination of their legal rights and legal responsibilities. The law will not impose different benefits or different burdens upon the members of a society based on the fact that they may be man or woman.” Henderson v. Henderson, 327 A.2d 60, 62 (1974).
Pennsylvania state courts have leveraged the state's ERA in domestic circumstances in particular. See Di Florido v. Di Florido, 331 A.2d 174 (Pa. 1975) (abolishing the presumption that husband is owner of household goods that are used and possessed by wife); Adoption of Walker, 360 A.2d 603 (Pa. 1976) (holding that the Adoption Act’s failure to require parental consent of both parents, even if unwed, violates the ERA); Henderson v. Henderson, 327 A.2d 60 (Pa. 1974) (decided under previous divorce code, striking down statute providing for counsel fees and expenses in a divorce action for wife but not husband, which has now been superseded); Conway v. Dana, 318 A.2d 324 (Pa. 1974) (abolishing assumption that father must bear the principal burden of child support); Hopkins v. Blanco, 320 A.2d 139 (Pa. 1974) (holding that the ERA requires that both wife and husband should be permitted to recover for loss of consortium).
In Com v. Butler, the Supreme Court of Pennsylvania struck down the Muncy Act mandating that no woman receive a minimum sentence as it treats men and women offenders differently despite the commission of the same crime. 328 A.2d 851, 859 (Pa. 1974).
The Supreme Court of Pennsylvania has also used the state ERA to find that the Pennsylvania Interscholastic Athletic Association must allow girls to compete in sports with boys. Commonwealth v. Pennsylvania Interscholastic Athletic ’Ass’n., 334 A.2d 839 (Pa. 1975):
“The notion that girls as a whole are weaker and thus more injury-prone, if they compete with boys, especially in contact sports, cannot justify the By-Law in light of the ERA. Nor can we consider the argument that boys are generally more skilled. The existence of certain characteristics to a greater degree in one sex does not justify classification by sex rather than by the particular characteristic. If any individual girl is too weak, injury-prone, or unskilled, she may, of course, be excluded from competition on that basis but she cannot be excluded solely because of her sex without regard to her relevant qualifications.” Id. at 873-74 (citations omitted).
The ERA has also been used less progressively. In Fischer v. Dep’t of Pub. Welfare, the Pennsylvania Supreme Court held that indigent women were not entitled to a publicly funded abortion, rejecting, among other things, a claim under the state ERA. 502 A.2d 114, 124 (Pa. 1985). In 2008, in Dillon v. Homeowner’s Select, the Superior Court of Pennsylvania ruled that the ERA did not create a private right of action against an employer for gender-based discrimination. 957 A.2d 772 (Pa. 2008).
Pennsylvania ratified the federal ERA on September 26, 1972.