Let's Pass the ERA! We Need it Now More Than Ever

"If I could choose an amendment to add to the Constitution, it would be the Equal Rights Amendment. I think we have achieved that through legislation, but legislation can be repealed, it can be altered. So I would like my granddaughters, when they pick up the Constitution, to see that notion – that women and men are persons of equal stature – I’d like them to see that is a basic principle of our society.”

- Justice Ruth Bader Ginsburg

Ratification of the Equal Rights Amendment (ERA) would enshrine equal rights as a core value in our Constitution, finally providing an explicit guarantee of protection against discrimination on the basis of sex. At this critical moment in history, our nation’s women and girls (cisgender and transgender) desperately need the ERA and the protections it would ensure.

How the Equal Rights Amendment Came to Be and Why

First proposed by the National Woman’s political party in 1923, the ERA would have ensured that sex is a protected class under the U.S. Constitution, meaning every woman in the United States would be protected against discrimination on the basis of their gender. More than four decades later, the revival of feminism in the late 1960’s spurred the ERA’s introduction into Congress. Under the leadership of U.S. Representative Bella Abzug of New York and feminists Betty Friedan and Gloria Steinem, in March 1972, the ERA was adopted by Congress with broad, bipartisan support, including from the Republican Party and President Nixon. It was then sent to the states for ratification and given seven years (by 1979) to reach the threshold set by Article V of the Constitution, which provides that an amendment is effective when ratified by ¾ of the states.

Within the year, 31 states ratified what would have been the 27th Amendment, and by the late 70’s it had been ratified by 35 states. Although Congress passed another resolution extending the ratification deadline from 1979 to 1982, the ERA was not ratified by the 38 states needed for ratification, largely due to pressure from anti-ERA conservative groups such as Phyllis Schlafly and STOP ERA Campaign.

What is the status of the ERA now?

Every year since 1982 (including this year, see H. J. Res. 35), a bill has been introduced in Congress that would start the ratification process over again (the “Start over strategy”). There are also bills pending that would eliminate the deadline all together, allowing the original ratification process to continue (the “three state strategy”). See S.J. Res. 6; H.J. Res. 38.

Much of this work is spearheaded by the Equal Rights Amendment Coalition, which includes dozens of feminist organizations, including the Gender Equality Law Center, and millions of members nationwide. The leading effort to pass the ERA follows the “three state strategy” – aiming to extend or remove the deadline to pass the version of the ERA that was before Congress in 1972. Throughout the decades, the broad support for the ERA and efforts toward its passage have continued. In fact, in 2017 and 2018, Nevada and Illinois, respectively, became the 36th and 37th states to ratify. With just one more state, the ERA will meet the ¾ requirement needed to pass a Constitutional amendment. GELC supports the three state strategy – which is the most promising option to pass the ERA – as compared to the “start over” option requiring a new ERA bill to be introduced in and passed by congress, and then the ratification process by the states would begin again from scratch.

The states that have not yet ratified the ERA are: Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, and Virginia. Bills to ratify the Amendment were recently introduced in the state legislature for Arizona, Georgia, Florida, North Carolina, Utah, and Virginia.

There has been a similar push to increase ERA protections on the state and local level. Today, twenty-five states have state constitutions that protect on the basis of sex, and nine states have passed constitutional ERA amendments that are identical to the federal proposed ERA. In New York, a state ERA was passed by the State Senate in June of 2019 which, if passed by the State Assembly and then put on the ballot for New York Voters, would add protections against discrimination for women and LGBTQ New Yorkers.

Why do we need the ERA if women are protected by civil rights laws?

Some may ask why an amendment to the federal Constitution to prohibit discrimination on the basis of sex is necessary when we have the Equal Protection Clause. It is important. Perhaps now more than ever, when the Trump Administration is carrying out a targeted assault on the existing protections for women and LGBTQ folks, it is critical for the government to state clearly that women (cisgender and transgender) and men have equal rights under the law. Although the 14th Amendment says that the government may not “deny to any person within its jurisdiction the equal protection of the laws,” the Supreme Court has held that this provision gives some protection against sex discrimination, but it doesn’t apply to sex in the same way it applies to race or national origin.

In fact, some justices believe that it is wrong to extend the Equal Protection Clause of the 14th Amendment to sex discrimination, arguing if the framers of the 14th Amendment did not have sex equality in mind. According to the late Justice Scalia, “The Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” With the recent confirmation of Justice Kavanaugh, the Supreme Court now has a 5-4 majority that favors conservative policy and poses a threat to decisions that say the 14th Amendment protects against sex discrimination. Decades worth of progress towards women’s rights is at stake in a variety of areas, including pay equity, reproductive rights, ending violence against women, and reducing systemic gender-based bias.

Recent polling by the ERA Coalition and the Fund for Women’s Equity shows 94 percent of Americans support an amendment that guarantees equality on the basis of sex. Women and girls (cisgender and transgender) will not truly be equal under the law unless their equality is enshrined in our Constitution as a core value of the United States. With a vast majority of Americans agreeing that this is an important issue, and at this critical moment in history when we desperately need the protections of the ERA, join the Gender Equality Law Center in educating and pushing states that have not ratified the ERA amendment.

Interested in where your state and representatives stand on the ERA amendment? http://www.eracoalition.org/cosponsors.php