The most familiar phrase in the 14th Amendment, Section One (of five)—and most commonly litigated—is “equal protection of the laws.”
The wording of the Equal Protection clause of the United States Constitution is deceptively simple… “nor shall any State […] deny to any person within its jurisdiction the equal protection of the laws.” It is in fact, “one of the most litigated and significant provisions in contemporary constitutional law,” according to constitutional law professor, David Smolin. As legal scholars continue to debate, women living on the streets suffer regular and often brutal sexual assault. Nowhere is this more true than in the large unhoused population in Downtown Los Angeles.
Many nice people live in the Skid Row community. Like good neighbors anywhere, they will stop what they’re doing to give directions, make recommendations for the best places to eat, or just shoot the breeze. But undeniably, danger lurks on their streets. With a higher than average number of people struggling with serious addictions and mental illness, the area can be unpredictable.
While anyone visiting or working in this part of downtown should be cautious, no one faces the same level of danger as the people who live there. Especially for the women of Skid Row, threat is an around-the-clock reality.
According to statistics released by the Los Angeles Police Department, the number of rapes in the area has risen each year for the last three years, with an overall increase of 200 percent. This statistic is even more troubling given that the citywide number has actually decreased. To make matters worse, these statistics only reflect reported rapes. It is commonly believed that most rapes of unhoused women go unreported. And this is where the question of equal protection becomes relevant.
Women living on the street are unlikely to go to the authorities for any kind of assault. For the most part, the unhoused don’t have great relationships with law enforcement. Their interactions often involve being cited or arrested because of drug possession, shoplifting, or failure to appear in court for previous citations. If they do report an assault, the accuracy of their statement will more than likely be challenged because of histories of drug use, past criminal activity, or mental illness.
This lack of credibility makes it highly unlikely a perpetrator will receive significant jail time, if any at all. Perpetrators return to the street angry and emboldened. The victim is then in serious danger of retaliation.
There can be little doubt that our legal system fails homeless women. How it is able to do this is complicated. It seems that equal protection doesn’t mean exactly equal. In fact, a three-tier system has been developed to analyze the constitutionality of laws and their application. These tiers establish how deeply the court looks into claims of legal discrimination.
To warrant higher level scrutiny, it must be proven that a law is being applied unfairly to a suspect class. A suspect class is a group of people who have experienced a history of discrimination, are members of a discrete minority and have immutable characteristics. According to the Supreme Court, the four suspect classes are race, religion, national origin, and alienage. Gender and legitimacy of birth are quasi-suspect classes warranting intermediate scrutiny.
The fact that gender merits only the second level of protection may come as a surprise.
The inequalities women have faced throughout history is too long a list to discuss here, but to recognize the systemic discrimination against women, it is not necessary to look back.
Currently, the Equal Rights Amendment has not been ratified, a gender-based wage gap still exists, only 6.6 percent of Fortune 500 company CEOs are female, and the United States has never had a woman president or vice president. The history of discrimination based on the immutable characteristics of gender seems clear.
In addition to women having only quasi-suspect class consideration, being economically disadvantaged does not constitute a suspect classification at all.
The question of whether or not the poor constitute a suspect class was decided by the Supreme Court in the trial of San Antonio Independent School District v. Rodriguez, according to Adam Winkler, professor of constitutional law at UCLA. In this case, the legal team representing Rodriguez argued that public education funding based on property tax created a system of unequal schools. The Supreme Court opinion established that poverty is not immutable, and therefore, the poor are not a suspect class, explained Winkler.
So, are the women living in Skid Row being protected equally by our laws?
To make the case that the current system denies these women full protection, it would need to be argued that women, as a quasi-suspect class, are facing discrimination, but this is not the point. The issue is that the poorest women are less protected because of the combined factors of gender and poverty. The accepted interpretation of the constitution, however, does not add an extra level of scrutiny for economic status.
In addition to this problem, there would also have to be someone to bring the case of unequal protection before the courts. It is hard to imagine an unhoused woman being able and willing to take on this battle. Court cases often drag on for years, and women living on the streets tend to lack stability. In addition, the issue of credibility would certainly play a role in how the case developed. This lack of realistic access to the legal system brings up further questions of the equality of protection for one of the nation’s most vulnerable populations.
The problem continues. The women of Skid Row, and so many others living in similar conditions, don’t report, and perpetrators roam the streets beating, raping, and even killing them.
Still, Americans are taught that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”
- Rose, Henry, (2010). The poor as a suspect class under the equal protection clause: An open constitutional question, Nova Law Review, v. 34, p. 407-409.
- Smolin, David. The Heritage Guide to the Constitution, retrieved from. https://www.heritage.org.
Leonard’s analysis of the problems faced by unhoused women living in Skid Row is brilliant yet still accessible. I suspect that the COVID-19 pandemic will expose many of the flaws in American society. Thank you, Kait Leonard, for exploring this issue and sharing your insights with us.