Neither “women” nor “sex” are words that appear in the Constitution, revealing the limits of the Founding Fathers’ narrow understanding of women as equal citizens. The Constitution was written by and for white men with means, which reserved its principle of equal justice under law for the sole benefit of the authors and their privileged peers. This meant that women and people of color, among others, were openly regarded as less than full citizens and thus excluded from many legal protections because of their sex, race, and/or ethnicity.
Even without an explicit mention of sex in the Constitution, many of the legal protections that seek to promote women’s equality—and equality across the gender spectrum—are rooted in the Constitution’s equality principles and a modern understanding of equality that has surpassed outdated prejudices and stereotypes. Strong majorities of the U.S. Supreme Court over more than four decades have made clear that the 14th Amendment, which guarantees “equal protection of the laws,” encompasses protections against sex discrimination; this is evident first in the 1971 landmark ruling, Reed v. Reed, followed by other cases such as Frontiero v. Richardson, which was argued by now-Supreme Court Justice Ruth Bader Ginsburg.5 Despite this broad consensus, some conservative thinkers and theorists—such as Justice Antonin Scalia6—have rejected a reading of the 14th Amendment to include sex, arguing that such arguments are specious because they do not reflect the original intent of the nation’s founders. In the face of an increasingly conservative federal judiciary, arguments against sex discrimination rooted in the 14th Amendment are under threat, and existing protections are vulnerable to being rolled back.7