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On Women’s Equality Day, I read Equality Now’s International human rights law and constitutional equality, published as part of its advocacy on women’s rights in the United States. Its central proposition is direct: equality should be guaranteed in the Constitution, and constitutional protection is necessary if human rights are to be equally enforceable. This note is my independent public-law response. It asks a harder question of constitutional design: in a federal system, who must establish the minimum level of protection, and what happens when constitutional authority is divided among institutions that do not have equal power to act?
From legal gaps to constitutional structure
The United States does not lack laws against sex discrimination or gender-based violence. The Equal Protection Clause, federal civil-rights statutes, state criminal laws, family-law rules, protective orders, and administrative programs all provide forms of protection. The difficulty is that these protections do not rest on a single, settled constitutional foundation expressly prohibiting the denial of equality on account of sex. Their scope also varies by subject, remedy, institution, and geography.
Equality Now points to child marriage, female genital mutilation/cutting (FGM/C), online sexual exploitation, and the unsettled position of the Equal Rights Amendment (ERA). These matters are legally distinct, but they expose the same public-law problem: the allocation of authority. Marriage and family law remain principally matters of state law; much ordinary criminal law is also administered by the states. Federal power, by contrast, must be tied to an enumerated constitutional source. As a result, conduct may be prohibited without exception in one state, permitted under specified conditions in another, and addressed by different remedies or enforcement practices elsewhere.
Federalism and geographical inequality
Variation is not itself a constitutional defect. Federalism permits local democratic choice and has allowed some states to adopt stronger protections before national institutions acted. A state may serve as a laboratory for reform. But the same structure can preserve serious differences in protection. When a state border changes a child’s exposure to marriage, a survivor’s access to a civil remedy, or the availability of protective services, legal diversity begins to affect bodily integrity, equality, and access to justice.
The relevant question is therefore not whether every state law must be identical. It is whether certain interests are sufficiently fundamental to require an enforceable national floor. Equality Now effectively answers yes, but identifying the need for a floor does not determine the legal route for creating it. A national rule may depend on constitutional amendment, Congress’s enumerated powers, enforcement legislation under the Reconstruction Amendments, conditional federal spending, or coordinated state reform. These routes are not interchangeable. Each has different limits, remedies, and consequences for federalism.
The limits of congressional power
United States v. Morrison illustrates the problem. Congress created a federal civil remedy for victims of gender-motivated violence after compiling an extensive record of its nationwide effects. The Supreme Court nevertheless held that the remedy exceeded Congress’s authority under the Commerce Clause and section 5 of the Fourteenth Amendment. Non-economic violent conduct could not be aggregated into interstate commerce merely because of its national consequences, and the Fourteenth Amendment generally regulates state action rather than purely private conduct.
The federal FGM/C statute faced a related objection in United States v. Nagarwala, where a district court held that the 1996 prohibition exceeded Congress’s enumerated powers. Congress later enacted the STOP FGM Act of 2020, revising the statute and grounding it more expressly in interstate commerce. Whatever view one takes of the earlier decision, the episode shows why the existence of serious harm does not by itself establish federal competence. A legally sound proposal must identify the source of congressional authority and distinguish between measures Congress may require and reforms it may encourage through funding, coordination, or incentives.
Equal protection and the ERA
The Fourteenth Amendment does not expressly name sex, but the Supreme Court has developed substantial protection against sex discrimination under the Equal Protection Clause. Sex-based classifications ordinarily receive intermediate scrutiny; in United States v. Virginia, the Court required an “exceedingly persuasive justification.” This doctrine matters, yet it remains distinct from strict scrutiny and depends on judicial interpretation of the classification, the government’s objective, and the fit between means and ends.
The ERA would change the textual foundation by providing that equality of rights shall not be denied or abridged on account of sex and by granting Congress enforcement power. Its present status, however, remains contested. Thirty-eight states have voted to ratify it, and advocates maintain that Article V’s numerical requirement has been satisfied. In December 2024, the National Archives stated that the amendment could not then be certified or published because of established legal and procedural decisions concerning the ratification deadline. President Biden subsequently declared in January 2025 that the ERA was the Twenty-Eighth Amendment, but that declaration did not settle the legal dispute. It would therefore be inaccurate either to treat the ERA as unquestionably part of the Constitution or to describe the movement for its recognition as legally insignificant.
It is also premature to assume that recognition of the ERA would automatically produce strict scrutiny in every sex-equality case or resolve every dispute concerning reproductive rights. The amendment would provide a clearer constitutional text and a new enforcement basis for Congress; its precise doctrinal consequences would still be developed through legislation and adjudication.
International standards and domestic enforceability
Equality Now is strongest when it identifies the inconsistency between American advocacy abroad and uneven protection at home. The United States regularly urges other governments to prohibit child marriage, prevent FGM/C, and strengthen legal equality, while it has not ratified CEDAW or the Convention on the Rights of the Child. The Human Rights Committee has also called on the United States to strengthen protection against sex and gender discrimination.
Still, international responsibility and domestic enforceability should not be collapsed. The United States is a party to the ICCPR subject to reservations, understandings, and declarations, including a declaration that its substantive provisions are not self-executing. International obligations can guide interpretation, reporting, and political accountability without automatically creating a privately enforceable federal claim. Nor does international law always prescribe a single institutional form of compliance. Constitutional text matters, but statutory rights, judicial remedies, administrative capacity, and state implementation determine whether equality can be claimed in practice.
A public-law conclusion
Equality Now’s intervention identifies a real constitutional vulnerability: important protections remain dispersed across judicial doctrine, federal statutes, state law, and contested constitutional claims. But a public-law analysis must go beyond the statement that equality belongs in the Constitution. It must ask which institution has authority to act, against whom a right may be enforced, what remedy follows, and how a national minimum can coexist with legitimate state autonomy.
Federalism is a method of distributing public power. It should not become a method of distributing fundamental rights unequally. The central test is whether the constitutional system can guarantee every woman and girl a coherent, enforceable minimum of protection, regardless of the state in which she lives.
Selected authorities
Equality Now, The Equal Rights Amendment: Equality in the U.S. Constitution (updated 2025); United States v. Virginia, 518 U.S. 515, 531–34 (1996); United States v. Morrison, 529 U.S. 598, 617–27 (2000); United States v. Nagarwala, 350 F. Supp. 3d 613, 629–31 (E.D. Mich. 2018); STOP FGM Act of 2020, 18 U.S.C. § 116; National Archives, Statement on the Equal Rights Amendment Ratification Process (Dec. 17, 2024); Human Rights Committee, Concluding Observations on the Fifth Periodic Report of the United States, CCPR/C/USA/CO/5, paras. 18–19 (2023).
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