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University of Miami International and Comparative Law Review

Abstract

While the U.S. Constitution opens with the inclusive promise of representing “We the People,” it remains silent on gender equality. That silence leaves gender-based rights dependent on judicial interpretation rather than constitutional command, producing uneven, unstable protections that shift with changing courts and political regimes. Although the U.S. Supreme Court addresses sex discrimination through the Equal Protection Clause, its jurisprudence relies on a formal equality framework that fails to confront structural and systemic gender inequality and offers no durable constitutional guarantee.

This Note argues that the U.S. can no longer rely on judicial interpretation alone to secure gender equality. Instead, it must adopt explicit constitutional language. Using a comparative analysis of France, Germany, and Sweden, this Note demonstrates that explicit guarantees of gender equality—paired with affirmative constitutional obligations—helped those nations move beyond formal equality and non-discrimination to achieve substantive equality. Each constitution makes gender equality a foundational principle, authorizes proactive state action, and constrains political backsliding in ways the U.S. Constitution does not.

Building on these comparative models, this Note critiques the original Equal Rights Amendment’s limitations and proposes a modernized constitutional amendment to address present-day gender inequality. The proposed amendment does more than forbid discrimination. It affirms women’s equal rights, authorizes affirmative measures to dismantle structural disadvantages, and grants clear legislative enforcement power at the federal and state levels. By reconceptualizing gender equality as a constitutional mandate, not just a judicial doctrine, this Note argues a new Equal Rights Amendment is needed to ensure “We the People” truly includes everyone, regardless of gender.

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