Welcome To The Bitchery
Welcome To The Bitchery

An Excerpt from my Constitutional Law Casebook...

Presented almost without comment.

The U.S. Constitution is the only major Western Constitution with a bill of rights that lacks a provision explicitly declaring the equality of the sexes. For example, the French Constitution since 1946 has provided that "The law guarantees to the woman, in all spheres, rights equal to those of the man." Article 3 of the German Basic Law provides that "Men and women shall have equal rights," and that "No one may be disadvantaged for favored because of his [sex]." The Constitution of India provides that "the State shall not discriminate against any citizen on the grounds of [sex]." Among newer constitutions, Canada's provides that "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on [sex]." And South Africa's provides that neither the state nor any person may "unfairly discriminate directly or indirectly against anyone on [grounds] including [gender], sex, pregnancy, or marital status." For a comparison between such constitutional approaches to sex discrimination and the U.S. approach, see Sullivan, "Constitutionalizing Women's Equality," 90 Cal. L. Rev. 735 (2002).

In contrast, the U.S. Constitution, in its original text, never referred to women at all. The only known use of the pronoun "she" in the framing deliberations concerned a later-rejected clause that would have referred to the rendition of fugitive slaves. Of course, some clauses governing the rights of individuals must have applied implicitly to women (e.g., habeas corpus, ex post facto, bills and attainder). But the Constitution provided no federal protection against laws explicitly treating women differently from men. Did the Fourteenth Amendment Equal Protection and Privileges or Immunities Clauses contemplate equality for women? While suffragists participated in the fight for abolition, the text of the Fourteenth Amendment did not reflect their struggle; indeed, the second section of the Amendment introduced the word "male" into the Constitution and linked it to the franchise, providing for the apportionment of representatives among states by population but penalizing states that limited the vote of noncriminal "male" inhabitants.


I always knew that the U.S. didn't have any language on gender or sex equality in it outside of the 19th Amendment. But seeing that information in perspective is very frustrating and rage-inducing.

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