Article I, Section 3-a of the Texas Constitution ("Equal Rights Amendment")

Added November 7, 1972:

Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.

Editor Comments

Under the federal equal protection clause, classifications based upon sex are subject only to "intermediate scrutiny." See, e.g., United States v. Virginia, 518 U.S. 515, 533 (1996) ("The heightened review standard our precedent establishes does not make sex a proscribed classification.").

The effect of this section of the state constitution, known as the Texas Equal Rights Amendment, is to subject classifications based upon sex to "strict scrutiny." For information regarding the fifteen-year campaign to secure passage of the amendment, see Texas Equal Rights Amendment.

—Attorney Steve Smith

Recent Decisions

• In re Dean, 393 S.W.3d 741, 749 (Tex. 2012) (citations omitted) ("We have applied a three-step evaluation to determine whether the [Texas Equal Rights] Amendment has been violated. First, we consider whether equality under the law has been denied. If it has, we must determine whether equality was denied 'because of a person's membership in a protected class.' If so, 'the challenged action cannot stand unless it is narrowly tailored to serve a compelling governmental interest.' Richard has not shown that he is denied equality under the law. Section 152.201(a) is a procedural mechanism for determining jurisdiction.")

Historic Decisions

• Richards v. LULAC, 868 S.W.2d 306, 311 n.3 (Tex. 1993) ("Plaintiffs point out that article I, § 3a, the Texas Equal Rights Amendment (ERA), has no federal analogue, and that we have held that it 'is more extensive and provides more specific protection than both the United States and Texas due process and equal protection guarantees.' In re Baby McLean, 725 S.W.2d 696, 698 (Tex. 1987). However, discrimination based upon race or national origin is already subject to strict scrutiny under both federal and state equal protection analysis. Therefore, the Texas ERA would not afford any additional level of scrutiny in such a case.")

• In re Baby McLean, 725 S.W.2d 696, 698 (Tex. 1987) ("Our reading of the Equal Rights Amendment elevates sex to a suspect classification. Sex is clearly listed in the amendment along with other classifications afforded maximum constitutional protection. The appropriate standard is thus one which recognizes that the Equal Rights Amendment does not yield except to compelling state interests. Further, it is not enough to say that the state has an important interest furthered by the discriminatory law. Even the loftiest goal does not justify sex-based discrimination in light of the clear constitutional prohibition.")

• Mercer v. Board of Trustees, 538 S.W.2d 201, 206 (Tex.Civ.App.–Houston [14th Dist.] 1976, n.r.e.) ("We cannot agree with the Supreme Court of Washington that the ERA admits of no exceptions to its prohibition of sex discrimination. Any classification based upon sex is a suspect classification, and any law . . . . With respect to 'physical characteristics' we are simply recognizing the facts of life. For us to adjudicate that women are men would be as futile as it would be absurd. Neither the ERA nor the rights established by it require us to construe it so as to deny sexual or reproductive differences between the sexes.")

• Heaton v. Bristol, 317 S.W.2d 86, 98 (Tex.Civ.App.–Waco 1958, ref'd) ("Neither counsel for appellants nor appellees have pointed out any case wherein an appellate court of any jurisdiction has at any time held, or even intimated, that a state cannot, as a part of its over-all educational system, maintain one all-male or one all-female university as the Legislature has done in Texas for our higher educational system. There is certainly not even the remotest suggestion by inference or otherwise in any of the reported cases that the system now maintained by Texas constitutes a violation of any constitutional provisions, State or Federal.")

Library Resources

• Vernon's Annotated Constitution of the State of Texas (this multi-volume and up-to-date resource is available at all law libraries and many municipal libraries)

• The Texas State Constitution: A Reference Guide (this one-volume resource is available at most law libraries and some municipal libraries)

• The Constitution of the State of Texas: An Annotated and Comparative Analysis (this two-volume resource is available at most law libraries and some municipal libraries)

Online Resources

• Constitution of the State of Texas (1876) (this resource is published and maintained by the University of Texas School of Law)

• Amendments to the Texas Constitution Since 1876 (this resource is published and regularly updated by the Legislative Council)

• Reports Analyzing Proposed Amendments (this resource is published and regularly updated by the Legislative Reference Library)