Why We Should Still Care About the Equal Rights Amendment

*Disclaimer: I am writing this blog post as an individual, and the views expressed within do not represent the official position of the WomanStats Project. The WomanStats Project does not take an official position on this issue.

Here’s a sobering statistic: 80 percent of people in the US incorrectly believe that the Constitution already guarantees men and women equal rights.[1]But, shamefully, this is not true. There is no constitutional amendment prohibiting discrimination on the basis of sex—but now, with the Equal Rights Amendment on the cusp of ratification, there could be.

The amendment was first proposed by Alice Paul in 1923.[2]The current wording dates to 1943 and reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”[3]Despite the simple wording, and arguably uncontroversial sentiment driving it, the amendment has been pushed aside for decades. Its initial defeat came after anti-feminist activist Phyllis Schlafly mobilized her considerable forces against the ERA, arguing it would erode traditional gender roles and destabilize society.[4]

Barriers to ratification prevented the ERA from even being taken up in legislation for decades. The House and the Senate finally approved it in 1972 and set a timeline for ratification. By the deadline in 1982, only 35 of the 38 necessary states had ratified the amendment, and other priorities swept it aside.[5]But, in historic moves, 2 more states recently ratified the ERA, galvanized by the MeToo movement. Nevada passed the ERA in 2017, and Illinois followed in 2018.[6]Now, just one state short, the ratification of the ERA is finally within reach.

Passing a constitutional amendment after the time permitted to ratify it has elapsed is unprecedented. But with the flipping of Virginia’s state Senate and House to Democrats, passing the ERA seems possible again. Activists are working to challenge the deadline in court, arguing that Article V of the Constitution does not impose a deadline for passage of amendments.[7]There is also an additional hurdle: five states (Idaho, Kentucky, Nebraska, Tennessee and North Dakota), that initially ratified the amendment, have since rescinded their ratifications.[8]It will be left to the courts to decide if those initial approvals still count.

Legal hurdles aside, the rationale for passing the ERA is clear, relevant, and still enormously important today. Certainly, there are other legislations in place that protect women, such as the Equal Pay Act, Title IX, and the Pregnancy Discrimination Act.[9]But legislation can be repealed much more easily than an amendment, and the ERA’s passage would signal that the US will no longer tolerate sex-based discrimination, as well as provide invaluable protections.

The ERA never uses the word “woman”; it guarantees that equality under the law cannot be abridged by sex.[10]In 2019, this has different ramifications than it did when initially proposed: activists have suggested that the ERA could extend protections to gender identity and sexual orientation, for example. It could also provide a more solid legal defense against the rollback of protections for women.[11]

A demonstrator holds a sign calling for an equal rights amendment (ERA) during in the Third Annual Women's March at Freedom Plaza in Washington

Some argue that the Fourteenth Amendment, often interpreted to apply to sex-based discrimination, renders the ERA moot. But the ERA would provide uniform, inclusive, and intersectional protection in a way the Fourteenth Amendment cannot, affording vital protections to groups whose rights have been contemporarily infringed upon.[12]Some, including late Justice Antonin Scalia, have argued that the Fourteenth Amendment was not intended to protect against gender-based discrimination.[13]The ERA would benefit women, undoubtedly, who are still constrained by injustices in our society, but it would also protect all people, regardless of gender, including groups for whom the court has decided present legislation does not protect. We need not worry about political fallout, either—a 2016 survey indicated that 94 percent of Americans support the ERA.[14]

More than half of the states have a version of the ERA in their own state constitutions, but a federal amendment would ensure that equality under the law is protected in perpetuity.[15]People are still regularly discriminated against based on their gender. We should still care about the ERA, because our government should invest in sending the message that discrimination based on sex—and on gender identity, and on sexual orientation—is unacceptable. It’s time to pass the Equal Rights Amendment, for women, and for all.

– R.O.

Image Source

Era Yes- https://www.theatlantic.com/politics/archive/2019/11/virginia-equal-rights-amendment-women-constitution/601609/

References

[1]Patrick D’Arcy, November 13, 2018, https://ideas.ted.com/why-the-us-needs-to-pass-the-equal-rights-amendment-finally/.

[2]Petula Dvorak, “The Equal Rights Amendment Has Languished for Decades. Virginia Must Put It over the Top.,”  The Washington Post(2018), https://www.washingtonpost.com/local/the-equal-rights-amendment-has-languished-for-decades-virginia-must-put-it-over-the-top/2018/11/29/c454c8f4-f3f0-11e8-80d0-f7e1948d55f4_story.html.

[3]“Why We Need the Equal Rights Amendment,” Alice Paul Institute, https://www.equalrightsamendment.org/why.

[4]Dvorak, “The Equal Rights Amendment Has Languished for Decades. Virginia Must Put It over the Top.”.

[5]Ibid.

[6]D’Arcy Why the Us Needs to Pass the Equal Rights Amendment –Finally.

[7]Dvorak, “The Equal Rights Amendment Has Languished for Decades. Virginia Must Put It over the Top.”.

[8]“Why We Need the Equal Rights Amendment”.

[9]Annalisa Merelli, “We Still Need the Equal Rights Amendment, Even after a Century of Debate,” Quartz, https://qz.com/1741837/why-we-still-need-the-equal-rights-amendment/.

[10]Russell Berman, “The Equal Rights Amendment Is an Artifact No More,”  The Atlantic(2019), https://www.theatlantic.com/politics/archive/2019/11/virginia-equal-rights-amendment-women-constitution/601609/.

[11]Ibid.

[12]“Why We Need the Equal Rights Amendment”.

[13]Lisa Murkowski and Ben Cardin, “It’s Time to Finally Pass the Equal Rights Amendment,”  The Washington Post(2019), https://www.washingtonpost.com/opinions/its-time-to-finally-pass-the-equal-rights-amendment/2019/01/25/54b3626e-20d0-11e9-9145-3f74070bbdb9_story.html.

[14]D’Arcy Why the Us Needs to Pass the Equal Rights Amendment –Finally.

[15]Murkowski and Cardin, “It’s Time to Finally Pass the Equal Rights Amendment”.

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