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Congressional Power to Effect Sex Equality

88 Pages Posted: 18 Feb 2013 Last revised: 7 Mar 2013

Patricia A. Seith

Stanford Law School

Date Written: February 21, 2013

Abstract

From its passage by Congress in 1972 to its ratification failure in 1982, the Equal Rights Amendment (“ERA”) pivotally shaped sex equality discourse. While historians and legal scholars have examined and analyzed its demise, its failure has been deemed inconsequential for constitutional doctrine — conventional wisdom submits that a “de facto ERA” was achieved through judicial action. This Article argues that this dominant narrative has obscured the other half of the equation — the role of Congress in implementing the “de facto ERA.” Through original archival and legislative research, this Article offers a new account of congressional action aimed at entrenching the substantive guarantees of the sex equality principle. This Article introduces the Economic Equity Act to the sex equality narrative.

Originally conceived as enforcement legislation for the ERA, this Article shows how congressional lawmakers used the omnibus Economic Equity Act for over a decade to articulate and advance their substantive vision of equality for women. Lawmakers introduced successive versions of the Act from 1981 to 1996, passing over thirty enactments. This Article argues that through the provisions of the Economic Equity Act, the women’s movement, lawmakers, and their constituents staked claims to the emerging meaning of sex equality and the terms of women’s economic citizenship — a critical chapter that has been written out of the histories of sex equality.

This Article argues that this account rewrites our history of sex equality in three important ways. First, this Article contends that the Economic Equity Act constituted a decisive turning point in congressional activity — away from legislation effecting “equality in theory” through facial prohibitions on sex discrimination, to legislation aimed at achieving substantive equality or “equality in fact.” Second, this account redresses a fundamental gap in the sex equality literature by showing how lawmakers advanced the Economic Equity Act in an effort to revise New Deal-era federal law and policy premised on the norm of the male breadwinner and female homemaker. Finally, this Article reveals the Economic Equity Act as a foundational chapter for understanding the historical and contemporary role of Congress in effecting sex equality. At stake for lawmakers advancing the Economic Equity Act were the terms on which the benefits and privileges of economic citizenship under federal law would be conferred in the wake of the societal changes precipitated by the modern women’s movement.

Keywords: Sex Equality, Economic Equity Act, Equal Rights Amendment, Legislative History, Congress, Legislation, Economic Citizenship, Legal History, Constitutional Law

Suggested Citation

Seith, Patricia A., Congressional Power to Effect Sex Equality (February 21, 2013). Harvard Journal of Law and Gender, Vol. 36, No. 1, 2013. Available at SSRN: https://ssrn.com/abstract=2220054

Patricia A. Seith (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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