Proposed constitutional amendment would make gender equality a fundamental right

Despite state laws prohibiting pay discrimination, women still earn only 79 cents to every dollar a man makes in the state.

That is one of several reasons why the Minnesota Constitution needs to include an equal rights clause, according to Rep. Kristin Bahner (DFL-Maple Grove).

She sponsors HF726, which proposes a constitutional amendment to include a new section that would state: “Equality under the law shall not be abridged or denied on account of gender.” It would be on the November 2022 ballot and, if approved by voters, take effect Jan. 1, 2023.

The bill was approved by the House Judiciary Finance and Civil Law Committee Tuesday and sent to the House State Government Finance and Elections Committee. The companion, SF850, is sponsored by Sen. Mary Kunesh (DFL-New Brighton) and awaits action by the Senate Civil Law and Data Practices Policy Committee.

Rep. Kristin Bahner

“The Minnesota State Constitution is a reflection of who we are as a state, our values as Minnesotans, and fundamentally should represent equality under the law for all citizens,” Bahner said. “Currently, it does not.”

She noted that 26 states have already adopted an Equal Rights Amendment clause in their state constitutions, and by doing so have made strides in reducing discrimination against women.

Establishing this fundamental right in a state constitution would give women a powerful legal tool to fight against pay disparities and other kinds of discrimination, according to Bahner.

Several Republicans expressed concern that the use of “gender” rather than “sex” – the term used in the federal ERA amendment ratified by some states in the 1970s – would lead to unintended consequences that could lead to more discrimination against women.

There is no clear definition of “gender” in state statutes, said Rep. Peggy Scott (R-Andover), which she called “very problematic.”

“My understanding of the ERA was that it meant equal rights for women,” Scott said.

Using “gender” in the bill’s language would lead to discrimination against female athletes competing against transgender women, which Scott said are inherently stronger. That would lead to women losing sports scholarships, she said.

Using “gender” instead of “sex” would not be problematic, Bahner said, because in the 2019 U.S. Supreme Court ruling of Bostock v. Clayton County, Georgia, the court ruled that both terms have an equal legal meaning in cases of discrimination.

Bahner also said that in the 26 states that have incorporated ERA language in their constitutions, there have been no unintended consequences that have moved equal rights for women backwards.

The nonpartisan House Research Department has a primer on how state constitutional amendments are proposed and ratified.