Reviving the Equal Rights Amendment

The Equal Rights Amendment has existed nearly 100 years but is yet to become law. Efforts are underway to change that, invigorated by the state of Virginia’s 2020 vote to ratify the ERA and the work of advocates.

By Sandra Guy, SWE Contributor

We’ve witnessed celebrities and billionaires rocket into suborbital space. We’ve survived one of world history’s deadliest viruses. And NASA engineers launched a space telescope that can see distant planets in far-off galaxies.

But the U.S. Constitution fails to prohibit discrimination on the basis of sex.

Why? It’s complicated.

The Equal Rights Amendment (ERA) would prohibit discrimination on the basis of sex — and not just for women. A U.S. Supreme Court ruling on June 15, 2020 extended the protection to people regardless of their sexual orientation and gender identity, said Carol Jenkins, president and CEO of the ERA Coalition and the Fund for Women’s Equality, sister organizations dedicated to the ERA’s adoption.

“For many years, we described it as ‘let’s put women in the Constitution,’” Jenkins said.

Jenkins said she now sees the ERA as more expansive — as applying to sex and gender identity — after the Supreme Court’s Bostock v. Clayton County ruling, which held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because they are gay or transgender.

ERA Coalition CEO and President Carol Jenkins

The Equal Rights Amendment’s magnitude isn’t the only uncertainty.

Amendments to the U.S. Constitution become law when they’re ratified by at least three-fourths of U.S. state legislatures — or 38 out of 50.

On Jan. 15, 2020, Virginia became the 38th state to ratify the ERA after its Senate and House of Delegates voted to approve the constitutional change.

Seems simple enough. Not so fast. Turns out that the ERA’s preamble included a deadline — the result of a long-ago political compromise — that expired on June 30, 1982, nearly 40 years ago. The deadline itself is a source of contention, since some argue it’s unconstitutional.

After Virginia’s ERA passage, the nation’s archivist, David Ferriero, a 2009 appointee of former President Barack Obama, declined to certify the amendment even though he had previously expressed his support for the ERA. That’s because the U.S. Justice Department’s Office of Legal Counsel under former President Donald J. Trump issued a memo forbidding Ferriero from publishing it.

Ferriero has announced that he’s retiring in April, and the U.S. Senate — just the Senate, not the U.S. House — must approve whomever President Biden nominates as Ferriero’s replacement.

ERA supporters are urging Ferriero to publish the amendment before he retires.

But on Feb. 8 [2022], three Republican senators — Rob Portman of Ohio, Ron Johnson of Wisconsin, and Mitt Romney of Utah — wrote to Ferriero, seeking his “reassurance” that he won’t act on the ERA “until it has been properly ratified and legal questions regarding such ratification have been resolved.”

Kimberly A. Hamlin, Ph.D., the James and Beth Lewis Professor of History at Miami University in Oxford, Ohio

Two efforts are now underway to finally get the ERA included in the U.S. Constitution:

  • ERA supporters have proposed legislation in both the U.S. House and the U.S. Senate to remove the deadline to ratify the Equal Rights Amendment — even though legal challenges would be inevitable and despite a federal judge’s ruling that the time has already run out for such a change.
  • Some Democrats want to insist, as a requirement of confirming Biden’s nominee, that the next archivist commit to publishing the ERA.

Additional considerations

There’s another wrinkle that reflects the nationwide debate over abortion rights. The U.S. Supreme Court will decide by this summer whether to overturn or undercut Roe v. Wade, the case that has guaranteed the right to an abortion since 1973.

“The central issue that’s animating debate [over the Equal Rights Amendment] is abortion rights,” said Kimberly A. Hamlin, Ph.D., the James and Beth Lewis Professor of History at Miami University in Oxford, Ohio. “That’s what has gotten ERA opponents motivated, especially now with the potential overturning of Roe v. Wade happening this summer.”

Dr. Hamlin said that women could, presumably, depend on an Equal Rights Amendment — if and when it’s certified as part of the U.S. Constitution — to demand full-scale reproductive health care.

An ERA in the U.S. Constitution could be interpreted to say that women’s equality rests, in part, on access to full-scale reproductive health care and that women’s rights must not be subsumed by those of unborn fetuses, Dr. Hamlin said.

“We [historians] look at the ERA as a living, breathing document over 100 years,” Dr. Hamlin said. “When Alice Paul first wrote it in 1923 and revised it in the 1940s, never could she have imagined our evolving perception of sex difference and gender, basically bestowing equal rights on everyone beyond a binary framework.”

Indeed, the ERA’s history goes back nearly a century — to 1923 — when members of the National Woman’s Party turned its attention to women’s equality after they had successfully lobbied for women’s right to vote.

The U.S. Senate first passed the ERA 49 years later — on March 22, 1972 — and sent it to the states for ratification.

So what can be done?

Jenkins said the ERA Coalition is working to “put more bite” into state and federal laws with the goal of further undergirding equality in several ways.

That means working for stricter equal pay legislation and starting a corporate equality roundtable aimed at creating a universal code of equality in private employment.

It’s all about changing existing laws and revising a document that was flawed from the start, Jenkins said.

“As I always say,” she said, “the source of this sexism, racism, and misogyny lies in the Constitution itself, the founding document, which left out the indigenous, enslaved people and women — anyone thought not to be a full human being at that time.”