Sweden and the rest of Scandinavia, crowned a paradise of gender equalityby media for years, have routinely garnered a wishful longing from many American feminists. The aura of mystery surrounding gender equality in Sweden and Scandinavia is, however, not a mystery at all. The tools necessary to create this, as Lise Bergh noted in her speech to the United Nations Committee on the Elimination of Discrimination against Women in 2001, is to make gender equality central to policy-making.

To understand how Sweden made gender equality central to policy-making, one needs to first understand the two mechanisms central to policy-making: Swedens welfare state and social democratic ideology work in tandem to promote and enforce gender equality. Linnea Halvarsson, policy advisor on gender based violence (GBV) to Kvinna till Kvinna, a Swedish organization that promotes gender equality and empowerment worldwide, noted the key to success for gender equality is a combination of softand hardreasons.”  

The Swedish social insurance system with paid parental leave and paid sick child care leave, enables women to be both mothers and professionals, and this is a result of the core policy of gender equality,Halvarsson says.  These core polices are supported by numerous equality act and anti-discrimination laws, such as the 2008 Anti-discrimination law (combining seven anti-discrimination laws into one), and an established Equality Ombudsman to enforce these laws.

At the beginning of the 1970s, the female participation in the labor force had leveled at 61 percent. With the enactment of these anti-discrimination laws, however, female participation in the labour force had risen to 83.7 percent in 2015.  

While the decades old debate about whether an Equal Rights Amendment is necessary to act as a legal framework to enforce gender equality in the U.S., Sweden, in contrast, does not have an equal rights clause in its constitution, nor have they ever sought to add one.

Why? Unlike Sweden, the United States, is not a welfare state (the U.S has  limited implementation as it applies to social security and medicaid), and has legal authority shared by three executive branches.  Together, these factors make it harder to form a collective and cohesive political and legal stance than in Sweden. Therefore, given the span of the U.S. government, the absence of gender-specific constitutional language carries very different outcomes for gender equality. Essentially, without a constitutional guarantee of gender equality, the responsibility rests with different levels and branches of government to interpret the Equal Protection Clause as they see fit.

Supreme Court Justice Ruth Bader Ginsburg asserted in 1979 that this has created ambivalence around enforcement of the Equal Rights Protection Clause.  Equal protection adjudication is not so mechanical, clear, and certain, as commentators, over courts, and some of the Justices observed, particularly in the early 1970s,” Ginsburg said.

Justice Ginsburgs remarks are echoed by many lawyers and professors of law, who continue to assert that ambivalence around the enforcement of the Equal Rights Protection Clause does a disservice to women.  Right now, if the state intended to treat women differently from men, then you might have an equal protection violation,noted Juile Suk, Professor of Law, Cardozo Law – Yeshiva University. If the state is doing something that has a disproportionate impact on women, that is not considered an equal protection problem.

Further, gender experts have generally agreed that in countries where higher levels of gender equality exist, higher levels of reporting of sexual assault coincide. In Sweden, rape that occurs ten times in a relationship is reported as ten different crimes,Halvarsson explained. In most other judicial systems, it is counted as one single crime.” 

Many legal scholars also hypothesize that enacting an Equal Rights Amendment in the U.S. would dispel the ambiguity around the interpretation of the Equal Rights Protection Clause, allowing judges who view unintentional gender discrimination as grounds for legal action to take legal action. For the judge who wants to open up a different way of thinking about gender equality, an Equal Rights Amendment would create an option that would provide a way out of some of the shackles of our past laws on gender equality,stated Suk.  

Garrett Epps, Professor of Law at Baltimore University, noted that an Equal Rights Amendment would further strengthen existing gender laws.  If the U.S. Constitution included equal rights for women, potential laws guaranteeing equal treatment would have a lot more oomph behind them.

In light of the Trump administrations roll back on womens rights, including: Reversing on-campus sexual assault guidelines, rolling back the Obama care provision mandating employers cover the costs of birth control, disbanding the White House council on Women and Girls, defunding Planned Parenthood, the Global Gag Rule, halting efforts to track the gender pay gap, and the pulling back on a 2014 law that enabled sexually assaulted women to testify in a public forum, many feminists wonder whether an Equal Rights Amendment would have prevented these actions. In response, Suk surmises, If we had an Equal Rights Amendment, it might have changed the way our politics and laws evolved; they would have evolved in ways that might have been more inhospitable to some of the politics that are gaining ground today.”

Kari Soo Lindberg is a 2017 fellow in the Sy Syms Journalistic Excellence Program, funded by the Sy Syms Foundation. The Sy Syms Journalistic Excellence Program at Women’s eNews fellowship supports editorial and development opportunities for editorial interns in the pursuit of journalistic excellence.