Equality Without Enforcement Is Not Equality

How courts, discretion, and constitutional gaps keep women unequal — and why the ERA case matters now

Over the past several weeks, I’ve been tracing the consequences of a set of cases, doctrines, and lived outcomes that determine whether equality is enforceable — or merely symbolic.

They aren’t.

Taken together, they tell a single story about how women can formally “have rights” and still be denied justice — not accidentally, not episodically, but as a structural feature of our legal system.

This series began with a simple observation: inequality no longer operates primarily through explicit exclusion. Women can vote. Women can work. Discrimination is illegal. The language of equality is everywhere. And yet, when women turn to the law for protection — from violence, from economic harm, from state coercion — the outcomes repeatedly collapse.

That contradiction is not a mystery. It is the system working as designed.

What the Essays Have Been Showing

Each piece in this series has examined a different site where the promise of equality breaks down:

In How Inequality Survives Without Villains, I looked at how modern inequality persists without overt hostility — through discretion, deference, and institutional habit rather than explicit discrimination.

In America’s Courtrooms Are Sending Children Back to Their Abusers, I traced what happens when mothers seek protection for their children and encounter a system that treats enforcement as optional and credibility as negotiable.

In Equality Was Declared — Not Achieved, I examined how cultural belief in women’s equality has replaced legal reality — and how that belief itself now functions as an obstacle to reform.

Most recently, in Why Statutory Rights Cannot Fix Constitutional Inequality, I focused on the legal mechanism underneath all of it: the absence of enforceable constitutional equality for women, and the consequences of that absence across policing, courts, and corporate power.

These essays are not separate arguments. They are different angles on the same structure.

The Question Beneath the Question

The question is not whether women have rights.

They do.

The question is whether those rights must be enforced equally — or whether enforcement remains discretionary when women are the ones seeking protection.

Under current constitutional doctrine, sex-based discrimination is not treated as presumptively intolerable. It is treated as conditionally permissible. Courts apply a lower level of scrutiny. Officials retain discretion. Institutions are afforded latitude. And when enforcement fails, women are told the law itself is not the problem.

This is why outcomes look the way they do.

It is why restraining orders can exist without requiring police action. Why civil rights statutes can exist without compelling remedies. Why women can be “protected” on paper while absorbing the cost of non-enforcement in real life.

This is not a failure of individual statutes. It is a constitutional gap.

Why This Matters Right Now

These questions are not theoretical.

The answers will shape not only how women’s rights are treated going forward, but whether enforcement itself is treated as optional under the Constitution.

In March, a federal court will hear EQUAL MEANS EQUAL v. Trump, a case that directly asks whether women are entitled to full constitutional equality under the law — and whether sex-based discrimination should finally trigger the same level of judicial scrutiny applied to other forms of classification.

This is not simply another women’s rights case. It is a case about whether equality is binding or optional; whether enforcement is required or discretionary; whether the Constitution protects women as a class or merely gestures in that direction.

The outcome will shape how every right is applied going forward — not only in cases involving gender, but in how courts understand enforcement itself.

What Comes Next

In the coming weeks, this series will turn to questions many institutions avoid directly:

Why major rights organizations often sidestep the Equal Rights Amendment — even as statutory protections erode.

Why having rights is not the same as having equal treatment under those rights.

Why enforcement, not recognition, is the real battleground of modern civil rights.

And what it means — legally and historically — for a democracy to declare equality while withholding its force.

This work is not about persuasion through outrage. It is about clarity. About tracing the architecture of inequality so it can no longer be mistaken for accident, delay, or bad luck.

Equality was declared. Whether it will be enforced is still an open question.

And that question— with real consequences for real people — is now before the courts.

For readers who want to examine the litigation directly, case background and briefs are available at https://equalmeansequal.org/legal-actions