If the ERA is now the 28th Amendment, What Level of Scrutiny Applies to Laws Drawing Sex Distinctions?

My latest Verdict column asks whether it matters if the Equal Rights Amendment (ERA) is now part of the Constitution. I begin by noting that in his final days in office, President Biden announced his view that the ERA is indeed the 28th Amendment, counting Virginia's 2020 ratification as valid, notwithstanding the fact that the National Archivist has not published it as such. After briefly recapping the reasons for and against thinking the ratification is valid, I then ask what practical difference it makes.

My column casts doubt on one of the chief ostensible impacts touted by ERA supporters--the claim that ERA ratification has secured a right to abortion. As I explain, the Supreme Court's ground for rejecting an equality rationale for abortion rights in the Dobbs case was that distinctions drawn on the basis of pregnancy simply are not sex-based. That's obtuse, but it's no more obtuse if offered as a reason to reject an abortion right grounded in the ERA than one grounded in the 14th Amendment's Equal Protection Clause.

Nonetheless, my column concludes that treating the ERA as valid has symbolic value and also could make a practical difference in other settings, especially with respect to LGBTQ rights. During the oral argument last month in United States v. Skrmetti, there was some discussion of whether the logic of Bostock v. Clayton County (which held, in part, that transgender status discrimination is sex discrimination) applies in the constitutional setting. Justice Gorsuch, the author of Bostock, did not ask any questions during the Skrmetti argument, but based on what he said about Title VI versus equal protection in his concurrence in Students for Fair Admissions v. Harvard, it is not difficult to imagine that he might distinguish between the statutory language of Title VII (at issue in Bostock) and equal protection (at issue in Skrmetti). As I explain in the column, the language of the ERA is substantially closer to the statutory language than the Equal Protection Clause is.

To be clear, for multiple reasons, I am certainly not predicting that the Court in Skrmetti will invalidate the Tennessee ban on gender-affirming care for minors based on the ERA. First, the cert question involves equal protection, not the ERA. Second, the Court would have to conclude that the ERA is validly the 28th Amendment to reach the issue, something it is highly unlikely to do without briefing and oral argument on that question. And third, the case could go away if, as seems likely, Trump's Solicitor General confesses error. There is some uncertainty on that last point, however. The Court granted cert only on the government's petition, but private plaintiffs have been part of the case since the beginning. If the Court really wants to retain the case even after the federal government withdraws or changes sides, it might try to find a way to substitute one or more private plaintiffs as petitioner(s).

More likely, however, we will need to wait for a future case to find out what practical difference treating the ERA as the 28th Amendment makes. Again, it's quite possible that the courts simply won't treat the ERA as part of the Constitution. If they do, however, one important question I don't address in the column is whether the ERA would change the way in which sex-based classifications are evaluated.

Under current doctrine, sex-based classifications are subject to at least intermediate scrutiny. I say "at least" in deference to the views of Justice Ginsburg, who always insisted that the Court never truly rejected strict scrutiny for sex-based classifications. She frequently substituted the somewhat ambiguous term "heightened scrutiny," which means anything other than rational basis scrutiny, up to and including strict scrutiny. And in her opinion for the Court in United States v. Virginia, she quoted earlier opinions for the proposition that sex-based classifications can only be upheld based on an "exceedingly persuasive justification," which sounds more like strict scrutiny than intermediate scrutiny.

We thus have the following leading candidates for the standard for evaluating sex-based classifications under extant doctrine: intermediate scrutiny; heightened scrutiny that is unclear as between intermediate and strict scrutiny; and exceedingly-persuasive-justification scrutiny that is close to strict scrutiny. Presumably, the ERA would require at least as high a level of scrutiny for sex-based classifications as equal protection does. Indeed, one could make a straightforward argument that it requires a higher level of scrutiny; otherwise, the ERA has no impact, in violation of the general rule of construction that legal provisions should all have some effect.

Some state high courts have followed this path when construing state constitutional versions of the ERA. For example, Washington State adopted a state constitutional ERA in 1972. Relying on this provision, the state's highest court has sometimes found state sex-based classifications invalid in circumstances in which the U.S. Supreme Court would have upheld them. It did so in the 1997 case of Guard v. Jackson, where the Washington Supreme Court rejected what it called "the less stringent federal equal protection analysis" as the standard for adjudication under the state ERA. I do not claim to have done exhaustive research, but I have found some similar outcomes and statements in other states as well. Similarly, a SCOTUS acting in good faith would feel a strong pull to treat the federal ERA (if it is validly part of the Constitution) as imposing a more stringent standard for evaluating sex-based classifications than currently prevails under equal protection precedents.

Another possibility would be to treat the ERA as imposing a per se rule. A few state cases support this approach. For example, in Guard, the Washington Supreme Court approvingly quoted two of its earlier rulings that said this: "The [state] ERA absolutely prohibits discrimination on the basis of sex and is not subject to even the narrow exceptions permitted under traditional 'strict scrutiny.'"

Intriguingly, the strongest support in SCOTUS jurisprudence for treating a federal ERA (if valid) as per se invalidating sex-based classifications probably comes from Justice Gorsuch in his SFFA concurrence. As I noted above and elaborate in the column, there he drew a number of contrasts between Title VI and equal protection. The former, he said, "does not direct courts to subject [racial] classifications to one degree of scrutiny or another. Instead, [u]nder Title VI, it is always unlawful to discriminate among persons even in part because of race, color, or national origin." And again, it is notable that Justice Gorsuch repeatedly equated the Title VI approach he was promoting in SFFA with the Title VII approach he had endorsed for the Court in Bostock.

That's significant because, as I explain in the column, the ERA is worded similarly to Title VII's sex discrimination prohibition in a way that the Equal Protection Clause is not. Thus, taking Justice Gorsuch at his word, we can envision him concluding that if the ERA is indeed the 28th Amendment, it is a per se rule against sex discrimination rather than the trigger for any particular level of scrutiny.

I don't expect that to happen, however. Notwithstanding a few state constitutional law decisions saying that a state ERA creates a per se rule of invalidity, it is difficult to imagine courts really following through on this approach. Among other things, it would categorically forbid sex-segregated restrooms in government facilities. And at the federal level, treating the ERA as per se invalidating sex-based classifications would have very substantial repercussions for the validity of Title IX and longstanding regulations implementing it. (These are separate from and in addition to implications for transgender students and athletes.)

Accordingly, if the courts do treat the ERA as the 28th Amendment, we can expect them to apply more than intermediate scrutiny and possibly strict scrutiny. They might even say that it adopts a per se bar. But they won't actually implement such a bar.