New research from the WORLD Policy Analysis Center at the UCLA Fielding School of Public Health (WORLD) shows that the United States is falling behind its global peers when it comes to guarantees for key constitutional rights. Researchers identified key gaps in the U.S. including guarantees of the right to health, gender equality, and rights for persons with disabilities.
While the analysis of all 193 United Nations member states’ constitutions shows considerable global expansion of protections over the past 50 years, constitutional gaps remain that leave millions vulnerable and without core human rights protections amidst a political environment marked by increased hate speech, discrimination, and divisive rhetoric.
“The new decade begins with clear constitutional gaps that place the United States in a global minority for failing to provide constitutional protections for a right to health care or gender equality,” said Jody Heymann, founding director of WORLD and distinguished professor of public health, public policy, and medicine at UCLA. “And major global gaps remain in the U.S. and elsewhere when it comes to ensuring rights for people with disabilities, migrants, and members of the LGBT community.”
“Eighty percent of Americans believe the U.S. Constitution guarantees more rights than it actually does: they believe it explicitly ensures that men and women have equal rights. It does not. In fact, the U.S. is one of just 28 nations that has failed to provide an explicit guarantee of equal rights or non-discrimination on the basis of sex or gender,” Heymann said. “Globally, the U.S. now lags 165 other nations with stronger constitutional protections for women. And the U.S. is absent from the 142 countries globally—including two-thirds of OECD countries—that provide some degree of constitutional protection for the right to health.”
With the United States as a key exception, gender equality guarantees have dramatically increased globally and are now nearly universal with 85% of the world’s constitutions prohibiting discrimination based on sex and/or gender. Seventy-eight percent of constitutions prohibit religious discrimination and another 76% prohibit discrimination based on race/ethnicity. And while 160 countries explicitly protect some aspect of the right to education, the U.S. is not among them.
In addition to documenting the state of equal rights globally, the right to health care and public health, and the right to education, UCLA analysis also highlights the consequences of failing to provide key constitutional protections.
“Constitutions typically take precedence over legislation and serve as a check to shield and prevent the erosion of rights,” said study co-author and senior legal analyst at the WORLD Policy Analysis Center, Aleta Sprague. “But where gaps remain, we see real consequences. The Affordable Care Act is in legal limbo in no small part because the U.S. provides no right to health. And employment non-discrimination protections for LGBT Americans are now pending with the Supreme Court because the U.S. lacks any clear constitutional language guaranteeing equality based on sexual orientation or gender identity.”
“While we can celebrate the fact that equal rights protections now appear in the overwhelming majority of the world’s constitutions, it’s troubling to see the U.S. being outpaced by our global peers on so many important fronts,” added Amy Raub, study co-author and principal research analyst at WORLD. “We hope our analysis give leaders and citizens the tools they need to fight for full protection under the constitution.”
Globally, more than 409 million women still live in nations that do not guarantee gender equality, with the United States accounting for the largest number.
“Constitutions help shape social norms and send clear messages about who matters and what nations value,” added Heymann. “Over the past fifty years, we’ve made great strides globally toward recognizing the equal worth of all people in our countries’ fundamental documents, and this progress has had meaningful impact on lives around the world. While only 54% of countries with constitutions adopted before 1970 explicitly guarantee women’s rights, 100% of those adopted between 2010-2017 do. And while only 56% of constitutions adopted before 1970 explicitly guarantee equal rights across religion, 92% of those adopted between 2010-2017 do so. Moving forward, we have an obligation to identify gaps and close them.”
- A constitutional right to health has been used to establish and preserve universal healthcare in Portugal.
- In Spain, the constitution’s guarantee of gender equality has helped realize the principle of equal pay for work of equal value.
- In Germany, the Constitutional Court found that the gender equality provision provided the foundation for an innovative parental leave policy, which incentivizes both fathers and mothers to take leave.
- The inclusion of LGBT+ rights within the post-apartheid constitution in South Africa not only made it the first nation do to so, but its adoption was followed with documented improvements in public support for LGBT+ equality.
- In Mexico, the Supreme Court cited the constitution’s explicit prohibition of sexual orientation discrimination in its landmark decision legalizing same-sex marriage.
- In Canada, citing the protection of equality for people with disabilities in the Canadian Charter of Rights and Freedoms, the Supreme Court ruled in 1997 that hospitals should provide interpreters for the deaf.
- Colombia’s constitution was used as the basis for a successful effort to abolish tuition fees for attending primary school—a barrier that had prevented many families from sending their children to school.
Still, significant gaps remain. Just 27% of constitutions globally explicitly prohibit discrimination based on disability. And despite high-profile progress in favor of LGBT rights, just 5% of constitutions ensure equal rights regardless of sexual orientation and just 3% extend these protections to gender identity.
The new data and complete research findings are available through a robust online resource featuring policy briefs, maps, and downloadable data, and as a freely available book, Advancing Equality, which can be downloaded from UC Press. Advancing Equality is authored by Jody Heymann, Aleta Sprague and Amy Raub.