The Equal Rights Amendment is almost there

1975 March for the ERA from Governor's mansion
Photo Credit: Donn Dughi, Florida Memory Project

The first section of The Equal Rights Amendment states, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” First introduced to Congress in 1923, the ERA would codify into law that all persons are protected from discrimination, regardless of sex. Ninety-seven years after its introduction, ERA activists haven’t given up hope. While the deadline for national ratification was 38 years ago, if the 116th Congress is successful in removing that limit, the ERA would provide a constitutional guarantee of protection to women as well as non-binary folk, trans, queer and a diversity of communities within the United States of America.

The ERA was first envisioned during the first women’s rights convention in 1848, and its relevance is still important during the intersectional feminist movements of today. “The ERA came out of activism, to make sure that women are legally protected and able to participate in this full concept of citizenship,” stated Dr. Christina Sciabarra, a member of the Bellevue College Political Science Department and veteran of the Iraq War. Four decades after the amendment’s initial introduction to Congress, the rise of the women’s liberation movement in the 1960s demanded the passage of the ERA to require the equality of women in the United States under the law. Initially, the amendment received wide bipartisan support, until it was removed from the Republican party’s platform during Ronald Regan’s 1980 presidency. If the ERA had bipartisan support, why didn’t enough states ratify the amendment in time? In the late 1970s, Phyllis Shaffley led the opposition against the ERA, arguing that it would revoke the rights of stay at home moms, force women into the selective service draft, and dismantle traditional American values. Her opposition was powerful enough to convince many Americans the ERA would be dangerous to the American woman.

Yet, both the House and Senate passed the ERA in 1972, with a deadline of state ratification by three-quarters of states (38 states) in 1979. Unable to gain enough support, the deadline was extended to 1982, but the ERA fell short of ratification by three states. Nevertheless, the fight for the ERA wasn’t over. Some states continued to build support for the ERA, while others opposed the ERA and tried to revoke it. That fight continued until this year, when on Jan. 27, the state of Virginia became the 38th state to ratify the ERA. The ERA did not enter the Constitution, however, because the 1982 deadline imposed by Congress had passed. The current Congress has now initiated its support for the three-state strategy, based on the 27th amendment, which was introduced for state ratification in 1789 and reached three-quarters of states in 1992. In the same manner, applying the three-state strategy for the ERA would revoke the timeline and ultimately declare the ERA’s ratification as complete.

If the current Congress extends the deadline and the constitutional amendment is passed, who would the ERA protect? While commonly associated with women, the ERA simply states the term “sex.” In the last two decades, courts have ruled that discrimination against a person for their transgender identity, is discrimination based on sex. Glenn V. Brumby, a lawsuit filed by a trans woman who was fired from her job for her identity, concluded that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination.” Under the protections of the ERA, the amendment would provide the legal protection women, nonbinary folk, the trans community and many other marginalized genders have lacked for years. 

The ERA could also make it more accessible for BIPOC women to bring forth cases that speak to, for instance, racial and gender discrimination BIPOC women face within the workplace. While it has been recognized that women earned the right to vote in 1920, this right wasn’t fully extended to black women, as many continued to face disenfranchisement when attempting to exercise their right to vote. The 1940s and 1960s gave voice to the black power movement and protests against the Vietnam war concerning the American racial treatment of black Americans. From these movements emerged the black feminist movement and the creation of the women’s liberation movement. The women’s liberation movement, however, was dominated by white feminism. While claiming to represent all women, the emphasis on the plight of white women failed black feminists in the movement they started. “We don’t need just white women writing legislation,” Dr. Sciabarra affirmed, “white women need to support and follow the lead of black women and indigenous women as they lead and tell us how things should be written.”

While equal protection rights are on the brink of becoming a part of the constitution, the ERA has received a lot of backlash from the current conservative leadership, both on the state and national levels. President Trump’s first effort in office was to revoke the Obama-era rule surrounding transparency of how businesses pay their female employees. Several corporations complained to President Trump claiming the expansion of transparency in the wage gap “means huge additional costs for companies of all sizes, yet has no accompanying benefit, or protections for the confidentiality of the information being gathered.” The rollback of the transparency process received backlash from the National Organization of Women, stating the decision “disregarded the Equal Employment Opportunity Commission’s to remedy persistent wage gaps correlated with sex, race and ethnicity.”

Under the Trump administration, the Senate has confirmed 200 conservative judges across both the federal and state level. Although Roe V. Wade still stands as the U.S. Supreme Court case which legalizes abortion in all 50 states, if enough state courts are shifted towards a conservative interpretation of the law, we will likely see a continued rise of anti-abortion laws being enforced and upheld. If the ERA is passed, however, protections for abortion would be much stronger. But how could the ratification of a simple three-section amendment like the ERA protect abortion from shifting court interpretations? Dr. Sciabarra compares the concept of the ERA to Title IX. “Title IX says that everyone has a right to education, and you cannot be prevented from getting an education on gender or sex. But when people think of Title IX they think of sports equity. They think of the fact that title IX is used to make sure that female-identifying people can have equal access to participate in sports and that’s because sports as part of education.” Essentially, the protections of Title IX are expanded to cover a multitude of issues, some translating to gender equality in sports education. Dr. Sciabarra argues that, in the same manner, courts could uphold abortion rights through the ERA’s expanded legal interpretation.

If ratified, the ERA would be the only amendment in the constitution to guarantee protection under law and equality of the sexes. As Congress has yet to determine its fate, many anxiously await the decision which will shape the future of their American liberties.