Women’s Rights and the Unequal Application of the Equal Protection Clause of the 14th Amendment


Americans may find themselves asking how gender equality - particularly in the workplace - can continue to be a struggle in the country whose constitution has inspired fledgling democracies the world over.

Americans may find themselves asking how gender equality – particularly in the workplace – can continue to be a struggle in the country whose constitution has inspired fledgling democracies the world over. Actually, the Constitution doesn’t ever guarantee or advocate equality. All that nice stuff about everyone being “created equal” comes from the Declaration of Independence, which, in terms of legal applicability, was little more than an angry breakup letter to the Brits.

The closest the Constitution comes to the issue of human equality is in the Equal Protection clause of the Fourteenth Amendment, which essentially says that the states can’t apply laws in a discriminatory manner. Note that enforcement is between the federal government and the states, not the federal government and private businesses or clubs. Only when someone is “clothed with the state’s power” does the federal government have any jurisdiction over whether he or she is practicing discrimination. Being that this is an incredibly cryptic statement, suffice it to say that the courts usually consider a state complicit only when it is a direct participant in discriminatory private behavior.

The 14th Amendment was added to the US Constitution in 1868 in an effort to improve the lives of former slaves in the South, but because the Amendment protects the rights of “persons” and not “freedmen,” it has since been interpreted in a much broader sense to apply to all people in the US. In fact, during America’s Gilded Age of big business and corruption, the Supreme Court broadened their interpretation to the point where the word “persons” suddenly applied to corporations. This made it much harder for the government to stand in the way of a ruthlessly expanding economy – not that it particularly wanted to.

In fact, Equal Protection was interpreted so broadly at this point in US history that workers petitioning for safer conditions and shorter workweeks were kept in the factories so that they would not be denied the “right” to support their families. Remember when you tried to convince your parents that being a teenager gave you the right to make your own choices, so they pulled the ol’ “with adult decisions come adult responsibilities” and doubled your chores? Picture that at a federal scale – only with more typhus – and you get a sense of how Equal Protection has been used against itself.

Appreciate our work?

Rewire is a non-profit independent media publication. Your tax-deductible contribution helps support our research, reporting, and analysis.


Nowadays, the Equal Protection clause is interpreted much less broadly. In fact, it actually applies to different groups unequally according to a three-tiered system of scrutiny. To honor the historical intent of the 14th Amendment, all state laws regarding race are subject to “heightened review,” meaning they are intensely investigated by the federal government and have to meet a huge series of criteria in order to be upheld. The only other laws that fall under this level of scrutiny (from time to time) are those involving citizenship.

The next-highest level of scrutiny is “intermediate review,” which the Supreme Court created in recent decades to address women’s rights and laws regarding gender classification. In order to withstand federal scrutiny, laws that treat men and women differently need to be “substantially” involved in achieving “important government objectives.” For example, in 1981, the Supreme Court upheld a California statutory rape law stating that while sexual relations between an adult male and a female minor are illegal, relations between an adult female and a male minor are not. Aside from being good news for Demi Moore, this distinction contributes substantially to the important government objective of reducing teen pregnancy.

For all laws that fall under the lowest level of scrutiny, the Supreme Court uses the “Lindsley Test”; so long as classifications between people can be argued to be reasonable and not arbitrary, laws will be upheld. However, because basic scrutiny is relatively easy to withstand, many people feel that laws impacting other groups, such as the elderly, the poor, gays, and lesbians, should fall under higher levels of scrutiny.

Others take it a step further, saying that the entire premise of applying the Equal Protection clause unequally is preposterous. While there is a certain undeniable irony to the three-tiered system, keep in mind that giving everyone the exact same rights would mean that your eight-year old cousin could marry a thirty-year old, or that grandma could enroll in the sixth-grade, or that when people put videos of their toddlers hittin’ the sauce on YouTube, it wouldn’t be a felony.

Load More

We report on health, rights, and justice. Now, more than ever, we need your support to fight for our independent reporting.

Thank you for reading Rewire!