In 1923, suffragist Alice Stokes Paul began a movement to amend the Constitution with 22 simple words: "Equality of rights under the law shall not be abridged by the United States or by any State on account of sex.” This proposed amendment was proposed in Congress by the founder of the National Women’s Party that same year. Despite substantial gains for women in the United States over the past century, nearly 100 years later, Congress has still not ratified the Equal Rights Amendment (ERA).
This may soon change. Virginia is poised to ratify the amendment, which would make it the 38th state to do so. Congress initially approved the ERA in 1972, but a constitutional amendment requires ratification by three-quarters of the states — which means that 38 out of the 50 states have to approve the amendment. After the ERA was approved, 35 states ratified it immediately, but the movement then stalled. Nevada ratified the amendment in 2017, and Illinois did the same in 2018. If Virginia ratifies the ERA, then it will become the 38th state to do so — which will set up another legal challenge.
When the ERA was initially approved, Congress set a deadline of 10 years for the states to ratify the amendment. This gave states until 1982 to ratify the ERA. If Virginia takes this action, it will happen nearly 40 years after the original deadline to do so. Lawmakers are working to remove this obstacle, with a resolution to eliminate the deadline expected to pass the House; approval will be more difficult in the Senate. Louisiana, Alabama and South Dakota have filed a lawsuit to force the federal government to allow the deadline to stand. On January 6, 2020, the Department of Justice released a legal opinion stating that the ERA cannot be ratified because the deadline has passed. Litigation over the deadline is likely if Virginia does ratify the ERA.
The current text of the ERA is simple:
Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.
Why is the ERA so important? It would be the first time that gender equality would be guaranteed by the United States Constitution. While there are numerous laws that ban discrimination on the basis of sex (such as Title VII of the Civil Rights Act of 1964), a constitutional amendment gives American women more tools to challenge discriminatory laws or practices in court. Rather than simply relying on individual laws that prohibit sex discrimination in some circumstances, litigants could point to the Constitution to argue that their rights have been violated. In addition, a constitutional amendment is far more difficult to change than a law.
Significantly, the ERA may offer wider protections for Americans. A constitutional amendment that prohibits discrimination on the basis of sex may be interpreted to also forbid discrimination on the basis of sexual orientation and gender identity. In the employment law context, many courts have determined that discrimination against LGBTQ people is discrimination on the basis of sex. It is likely that this same analysis would be used if the ERA were ratified.
Inequality is one of the root causes of gender-based violence, which includes domestic abuse, sexual assault, stalking, sexual harassment and other forms of violence. When women are viewed and treated as less-than-equal, it creates a mindset that justifies and empowers abuse. Moreover, when women are limited in opportunities for education, income, and independence due to inequality, it prevents them from leaving abusive situations. By directly addressing inequality, we can change our culture — which views violence against women as inevitable.
While we don’t yet know what will happen with the ERA, we can say this: after almost 100 years, it is past time for discrimination on the basis of gender to be explicitly prohibited by the Constitution. If you agree, contact your senators and representatives and urge them to support an extension of the deadline to ratify the ERA.