Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This Amendment shall take effect two years after the date of ratification.
In addition to the U.S. Constitution, every state in the nation must abide by its own state constitution. Advocates for constitutional gender equality have always had a parallel strategy to gain state constitutional equality, by organizing to amend state-level constitutions to guarantee protection against sex discrimination while simultaneously working to ratify the federal ERA. Twenty-three states have adopted state constitutions or constitutional amendments that prohibit the denial of equal rights under the state law based on sex. States have interpreted these provisions in various ways. Most state courts interpreting state-level ERAs apply “strict scrutiny” to gender-based classifications in the law, a higher standard than currently applied at the federal level. That means the government must not only have a compelling reason to discriminate, but the law must be narrowly tailored to achieve its goal – making it more difficult for lawmakers to pass laws that discriminate based on sex. Other states, such as Pennsylvania, apply an even higher, absolute standard, prohibiting almost all gender-based classifications.
In November 2022, Nevada adopted the nation’s most inclusive state ERA to date. It prohibits discrimination on the basis of “race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry, or national origin.” Over 580,000 Nevadans voted in favor of the ballot initiative to amend the state constitution. Nevada Senator Pat Spearman co-sponsored the original bill for Nevada to ratify the federal ERA in 2017, a successful action that revitalized the national movement for equal rights and inspired Nevada and other states to adopt state level ERAs. Maine, Minnesota and New York currently have pending state ERAs that have passed at least one house in their respective legislatures. New York’s state ERA will be introduced as a referendum on the ballot in 2024. If it succeeds, New York will become the only state level ERA that guarantees prohibition of discrimination on the basis of pregnancy and pregnancy outcome and effectively secure reproductive rights in the state.
