The Truth and Questions about the Equal Rights for Women

There has been a recent push for a Constitutional amendment guaranteeing equal rights for women. The Equal Rights Amendment (ERA) nearly passed enough legislatures a few decades ago to become part of the Constitution but just missed. Now, backers are pushing the Women's Equality Amendment (perhaps WEA is more persuasive than ERA?).

Now, I want to be clear about my position on this: I have no opposition to the concept of a Constitutional amendment on this issue. I'm certainly no Phyllis Schlafly and don't really buy into her belief that a bizarre set of unintended consequences (e.g. unisex bathrooms) would occur due to the amendment, though I acknowledge that at least some small ones could occur. The American court system has never held that any right is truly universal and absolute, and so I don't worry about the courts engaging in absurd interpretation of such an amendment.

A recent op-ed piece by Martha Burk and Eleanor Smeal attempts to make the argument for the amendment, but I was irritated by their entire article and was left unpersuaded. Specifically, they argue that, although women's rights are, for the most part, guaranteed through federal and state statutes, we still need a Constitutional amendment. In fact, the sub-headline to their op-ed piece reads, "The Gender Gap Runs Deep in American Law", suggesting that the "gender gap" is enshrined in our laws. So, they say, "Why is the amendment needed?" They then list the reasons and here are they are, with my comments in italics:

1. 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. This statement, while perhaps true, is rather vague. What is the "gap" in education? We have more women going to college than men and yet we have a gap that's negative for women? In terms of health, don't women live longer and isn't lifespan the ultimate measure of one's health (certainly, if one is dead, one cannot be "healthy"). Moreover, this complaint does not in any way implicate American laws as the cause of these "gaps", and I really don't see how an amendment could fix this.
   
2. We are 68th in the world in women's participation in national legislatures. What does this mean? What would be perfect? Exactly 50% of the legislature being women? While that may sound nice, the reality is that, in a democracy, people can vote for whomever they want and so it seems to me that our women's participation rate in Congress is NOT the fault of our laws but rather the fault of our people. How could an amendment fix this?
3. On average, a woman working full time and year-round still makes only 77 cents to a man's dollar. This is one of the most over-cited yet misunderstood statistics out there. This gap is almost entirely NOT due to discrimination (see here). More on this later, but again, how could an amendment fix this if discrimination isn't the problem?
4. Women hold 98 percent of the low-paying "women's" jobs and fewer than 15 percent of the board seats at major corporations. The first part of the sentence is circular logic. If something is defined as a "women's" job, it stands to reason that most of the people holding such jobs are women. Why call something a "women's" job if men held 75% of such jobs? The second part is, again, unrelated to anything in American law. So, how could an amendment fix either of these "problems"?
5. 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. Here, they might -- MIGHT -- have a point, though I don't understand the intricacies of Social Security enough to say for sure. However, my understanding is that Social Security law is based on years worked -- not gender. While perhaps unfair to stay-at-home women, this could only be fixed by statute and not, in my opinion, by amendment.
6. And in every state except Montana, women still pay higher rates than similarly situated men for almost all kinds of insurance. Huh? Really? They must not mean car insurance, which is just the reverse. Homeowner's insurance has nothing to do with your sex. Health insurance, at least through group plans, is exactly the same for each sex. Life insurance? Long-term disability or care insurance? Perhaps they mean individual health plans? It's not clear. I'm not sure whether an amendment could "fix" this.

They end their litany of criticism with: "All that could change if we put equal rights for women in our Constitution." I doubt it. Their statement is massively at odds with their litany. That list of problems never once criticizes American law for enshrining discrimination against women. So, how an amendment could "fix" our "women's participation rate" in Congress is unclear to me. I could go through each point on the list and tear it apart for paragraph after paragraph, but suffice it to say, I think it's clear that these two women are very upset about perceived "gaps" between men and women and, for some bizarre reason, think a Constitutional amendment could suddenly fix such gaps.

Their thinking is rooted in the same philosophy as that of Communists. Specifically, these women believe in the equality of "sameness" rather than the equality of opportunity. Communism, in theory, fought for the idea that all workers were the same and should be given the same of everything. American values, however, have traditionally held that everyone should be given equal opportunity, though each person may end up achieving different amounts. This amendment would clearly fall into the latter category as it is simply guaranteeing the same opportunities already afforded men. Therefore, it is unclear how such an amendment could possibly create these women's utopia of sameness for all.

Moreover, the writers argue that, although we already have statutes in place to prevent discrimination, these could easily be overturned (yeah, I'd like to see THAT happen!) and, therefore, such rights must be enshrined in the Constitution. Of course, if women are already protected by these statutes, how could their list of complaints possibly be true? Or, better yet, how could an amendment, which just enshrines the foundation of these statutes into the Constitution, possibly accomplish what these statutes have NOT accomplished? Ah, if only these writers understood that enshrining rights into the Constitution does not suddenly make everyone EXACTLY the same.