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Equal Rights Amendment

February 27, 2023

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This article is written by Sanjana Santhosh, a law student at Christ (Deemed to be University), Bengaluru. The article elucidates the history of the Equal Rights Amendment (ERA) and its impact on existing gender-based laws. The article also explains the implication of the Madison Amendment on the ERA along with the new developments and contributions of ERA in the 21st century.

It has been published by Rachit Garg.

Table of Contents

Introduction

The Equal Rights Amendment (ERA), a suggested amendment to the Constitution that ensures equal rights for women, was ratified by the state of Virginia on 15th January, 2020. After Democrats won the majority in both houses of the Virginia General Assembly for the first time in 20 years, the first female speaker of the state House of Delegates was elected, and the legislation became a high congressional priority. It was approved by a large majority in both houses of Congress. After a forty-year interval, Nevada (2017) and Illinois (2018) have ratified. The Constitution requires that in order for an amendment to go into effect, three-quarters of the states must ratify it. Currently, 38 states are required to fulfill this requirement.

When Virginia ratified the Equal Rights Amendment (ERA) in 2018, it became the 38th state to do so since Congress first proposed it in 1972. But nevertheless, there remain impediments in the ERA’s way. Five states have taken action to revoke their prior approval, and the ratification dates that Congress established after it approved the amendment have expired. These issues present crucial concerns, and it is ultimately up to the U.S. Congress, the judiciary, and the people of the United States to seek solutions.

What is the Equal Rights Amendment

The Equal Rights Amendment (ERA) is a recommended revision to the United States Constitution that, if ratified, would render many state and federal laws that discriminate against women null and void. The ERA is predicated on the idea that sex should not be used to determine whether or not a person’s legal rights are safeguarded.

According to the ERA, neither the federal government nor any state or local government shall deny or infringe upon any person’s equal protection under the law solely on the basis of that person’s gender, and Congress shall have the authority to enforce the provisions via relevant statutes. The Equal Rights Amendment (ERA) was originally proposed to Congress in 1923, just three years after women in the United States were granted the right to vote (by the Nineteenth Amendment), and it was ultimately ratified by the U.S. Senate in March 1972, a solid 49 years later. It was subsequently sent to state legislatures for ratification within seven years, but it wasn’t ratified by the necessary majority of 38 states until 2020, despite an extension of the deadline till June 1982. After the ERA was ratified by the 38th state (Virginia), its proponents contended that it might become the 28th Amendment to the Constitution if Congress passed legislation revoking the 1982 deadline.

Despite the fact that 30 states ratified the ERA within a year of its Senate adoption, ratification effectively stalled due to rising resistance from conservative religious and political organizations.

Apprehensions regarding women losing safeguards, such as being excluded from mandatory military service and combat duty, as well as economic assistance from husbands for themselves and their children, were the major grounds for opposition to the ERA. However, proponents of the ERA, principally represented by the National Organization for Women (NOW), insisted that financial concerns were at the heart of the debate. NOW argues that many state and federal laws that are unfair to women make them economically dependent and that rules about child support and career prospects should be made for the individual, not the sex. Many feminists who fought for the Equal Rights Amendment (ERA) were concerned that if the measure didn’t pass as an amendment, it would set back women’s rights in many ways and send the wrong signal to lawmakers and the courts about how they ought to approach feminist problems.

History towards the fight for ERA

National Woman’s Party pioneer Alice Paul (1885-1977) drafted the Equal Rights Amendment. Paul was born into a highly educated New Jersey Quaker family, and she went on to earn a plethora of degrees from prestigious American and British institutions. These include a Master’s and a Doctorate in Sociology from Penn, a Juris Doctor from the Washington College of Law, and a Master’s and Doctorate in Law from American University. The early 1900s protests she participated in on behalf of the British suffragist movement were pivotal events in her life and career. After observing the success of civil disobedience and other aggressive tactics used by suffragists in Britain, she urged American activists to adopt the same strategies upon her return to the United States in 1910.

Paul and Lucy Burns, dissatisfied with the National American Woman Suffrage Association‘s moderation, created the Congressional Union for Woman Suffrage in 1913. This organization was eventually renamed the National Woman’s Party and adopted a more militant stance. There were marches, petitions, protests, and pickets to get the right to vote. After engaging in a hunger strike while incarcerated for Paul’s 1917 conviction of picketing the White House, she was subjected to force-feeding.

National Woman’s Party leaders began planning for the future after women received the vote in 1920. The current effort to adopt the amendment, the ERA Coalition, was founded by women’s rights lawyer Jessica Neuwirth, who told TIME that suffrage activists regarded their work as correcting the deliberate exclusion of women from the U.S. Constitution. Women’s rights were purposefully left out of the constitution because they were not regarded as equal citizens who should have the right to vote. The freedom to vote only sparked a renewed push for equal treatment.

Though Paul’s fight in the 1920s fell short, it was picked up by Michigan Congresswoman Martha Griffiths in the 1950s. Griffiths, a former judge who was elected to the House in 1954, was instrumental in adding protections against sex discrimination to Title VII of the Civil Rights Act of 1964 and in encouraging the Equal Employment Opportunity Commission to step up its enforcement of the law. In addition to yearly introducing the amendment on the House floor, she was unsuccessful in getting it through until 1970, when Griffiths filed a discharge position that ultimately led to the measure being pushed out of committee and then enacted by the House. Griffiths reintroduced the bill the next year after the Senate rejected it the first time around. The House of Representatives approved it on October 12, 1971, and the Senate did so on March 22, 1972.

Impact of ERA on existing sex-based laws and practices

State and federal legislation are still prejudiced in only a handful of contexts. The position of women in the military, especially their eligibility to enlist and their ability to serve in combat, is a topic of significant public discussion. Much public attention has been paid to the problem of affirmative action for women, but the problem of affirmative action based on race has largely been overlooked. Perhaps because they’re tucked away in the dry relics of the nation’s obscure immigration rules, sex-based immigration preferences have garnered far less public attention. It appears that the ERA would have separate and more gradually graded consequences in each of these sectors, contrary to what the ERA had envisioned.

Women in the military

Equal Rights for Women addressed the military, anticipating that the ERA would have far-reaching effects on military culture and policy, necessitating a complete rethinking of the military’s attitude toward women. Women were not allowed to attend military colleges and had to meet stricter requirements to enroll than males did. It’s important to note that these policies have evolved. Women do exceptionally well across the board in the service academies and are more visible within the military, making up around 15% of active-duty personnel in 2005. Women today are required to meet uniform enlistment standards and carry out an expanding set of duties. Nonetheless, women are still legally barred from serving in combat roles, a ban that has not been lifted since 1971.

Furthermore, in states that link registration to access to student loans and other advantages, the selective service registration laws’ exclusion of women has certain inequitable repercussions. While the ERA might tip the scales in favor of women in the armed forces, the dramatic changes originally envisioned by the creators of Equal Rights for Women no longer appear likely to occur. When it comes to war powers and jurisdiction over the military, the Supreme Court has historically deferred heavily to the administration and the legislature. In Rostker v. Goldberg (1981), for instance, the Court upheld the military’s ban on female combatants and ruled that the ban adequately justified the practice of conducting the draft solely among males. The Courts have overlooked the sex stereotypes about the roles and capacities of women and men that underlie the combat exclusion and the all-male conscription by referring so fully to the judgments of Congress.

The substantial societal and technical shifts since the Supreme Court’s 1973 Rostker decision and the degree of interest in the topic suggest that an ERA might provide an opportunity to review these policies. We now have a new perspective. To increase women’s participation in combat, “military authorities wanted emancipation from the discriminatory policies’ limits,” as one observer put it in one of the Congressional hearings on the matter. The outcome is far from certain, and the Court’s history of giving extensive deference to the military (even in areas that directly affect military policy) makes it unlikely that it would take the initiative to ensure women have equal rights in the armed forces before Congress, the executive branch, or the military itself.

Affirmative action

It’s been almost twenty years since federal and state affirmative action programs were scrutinized and significantly dismantled, yet sex-based affirmative action policies are still in effect in some sectors. For instance, the federal Small Business Administration maintains set-asides for female-owned enterprises in government procurement, including in areas where women have been traditionally marginalized, such as national security contracting. Affirmative action initiatives based on gender have also been mandated by the law to address discrimination. A federal ERA may reduce access to affirmative action for women by increasing the examination of sex-based categories. Indeed, Equal Rights for Women argued that positive policies for women would be recognized only in limited remedial contexts if ‘absolute scrutiny’ was used under the ERA. Despite this, there are indications that affirmative action measures may survive ‘absolute scrutiny’ and continue to be effective.

If modern standards of strict scrutiny were used, these special measures would be available to a wider range of people. For example, in addition to direct corrective measures, affirmative action policies could be narrowly tailored to help universities and graduate schools get a diverse group of students. However, since the book Equal Rights for Women was published in 1971, there is little question that restrictions on affirmative action programs have increased greatly. These changes explain why a rigorous scrutiny examination of women’s affirmative action programs would have a very muted effect: many of these programs have already been drastically scaled back, and of those that haven’t, many can be justified under strict scrutiny. As a matter of fact, in at least one circuit, affirmative action programs for women are already subjected to strict examination. This is because knocking down programs for racial minorities but preserving programs for women would be a glaring injustice.

Sex-based immigration practices

The case of Nguyen v. INS (2001) reaffirmed an existing federal statute that discriminates against dads by denying them the same rights as women to pass on citizenship to their children born abroad. Citizenship can be sponsored throughout the entirety of a child’s life by a parent, wherein, in this case, the citizen mother of a child born abroad outside of marriage. Sponsorship by the citizen father of such a child must be initiated prior to the child’s eighteenth birthday, along with proof of paternity and financial support for the child. This law was affirmed by a 5:4 majority of the Supreme Court since the government successfully argued that the difference between sexes fulfilled the ‘internal scrutiny’ requirement because of the unique bond mothers have with their children. O’Connor and Ginsburg, the two female justices on the bench, dissented, accompanied by Souter and Breyer. Strict scrutiny would have been helpful here if only it had forced the government to defend the legislation on the basis of the reasons it was originally passed rather than on the basis of reasons that were invented afterward. The legislative history of this law reveals that it is a relic from a time when a mother was solely responsible for her child born outside of marriage, providing a counterweight to the theory of coverture, which gave males sole authority over the married family. Moreover, overturning the outcome in Nguyen would not likely be tremendously contentious. Before the cases Miller v. Albright (1998) and Nguyen v. INS (2001) reached the Supreme Court, the discriminatory legislation at issue was largely unknown, implying that only a small number of families were adversely affected by it. Additionally, there is widespread support for eliminating this gendered distinction in order to make parenting more equitable for all parents.

New developments

ERA and same-sex marriage

In 1971, the idea of a successful legal fight to legalize same-sex marriage was far-fetched. However, back in 1974, some were already arguing in court that state ERAs should safeguard same-sex marriages. These marriages are now recognized in the states of Massachusetts and California, with other states and territories recognizing civil unions and other forms of ‘quasi-marriage’ recognition. The topic of same-sex marriage is receiving a lot more attention as a result of recent developments. To Phyllis Schlafly, the leader of the ERA opposition, it seemed inevitable that the Equal Rights Amendment (ERA) of the 1970s would lead to same-sex marriage being legalized. Her claims were backed up by respected legal scholars like Harvard Law Professor Paul Freund, an ERA opponent, who testified before Congress that laws prohibiting wedlock between members of the same sex would be as invalid as laws forbidding intermarriage if the law must be as indiscriminately concerning sex as it is toward race. Although some state courts have considered same-sex marriage in light of a state ERA, the findings have been inconsistent and provide no definitive information concerning the implications of a federal ERA on same-sex marriage rights. Also, just like on the abortion front, proponents of the ERA deny categorically that it would have any bearing on the legality of gay marriage. The Alice Paul Institute issued a fact sheet arguing in favor of the Equal Rights Amendment, and it debunks the argument that the amendment would force states to accept same-sex marriage. In Baehr v. Lewin (1991), the Supreme Court of Hawaii was the only state court to cite a state ERA in ruling that a state statute requiring a man and a woman to be married was unconstitutional on presumed grounds.

A constitutional amendment, as opposed to a mere statute, redefining marriage in Hawaii as being between a man and a woman, was passed immediately after the court’s judgment. The highest court in Maryland, a state with a particularly robust ERA, ruled that such a ban on same-sex marriage did not run afoul of the constitution. Similarly, the Supreme Court of Washington, in the case of United States v. Windsor (2013), found that the state’s Defense of Marriage Act, which only recognizes marriage as being between a man and a woman, did not conflict with the state’s ERA, despite Washington’s adoption of ‘absolute scrutiny.’ The judges that made these rulings did so in part because of statements made by ERA supporters denying the amendment has any bearing on same-sex marriage. In short, arguments that a federal ERA will inevitably lead to Supreme Court recognition of same-sex marriage are unwarranted, given the inconsistency with which state courts have addressed this matter. In fact, efforts to utilize the ERA to increase same-sex marriage rights have been undermined by ERA proponents’ own ambivalence about the matter.

The court did not rule on the central question and instead sent the matter back to the lower court for further consideration of whether or not:

The law’s gender-based categorization is warranted by important governmental concerns, and
The applicant couples’ fundamental rights are not unduly burdened since the legislation is narrowly written.

In conclusion, arguments that a federal ERA will inevitably lead to Supreme Court recognition of same-sex marriage are unwarranted, given the inconsistency with which state courts have addressed this matter. The efforts to utilize the ERA to increase same-sex marriage rights have been hampered, in part, by the ambivalence of ERA proponents themselves.

ERA and foreign affairs

A federal ERA would improve the United States’ position among its peer countries and further isolate those countries that perpetuate sex discrimination as a matter of public policy, in addition to restricting judicial discretion and maybe boosting equality between men and women in beneficial ways. When compared to other countries, the United States has a somewhat unremarkable track record on women’s rights. The United States has yet to formally sign the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Female-headed families are more likely to be low-income, according to the most recent U.S. Census, and the US has never had a female president. Furthermore, there is no explicit provision for sex equality in the United States Constitution. The rest of the world is aware of it, and some are set on exploiting it to bash the United States abroad.

The United States, for instance, signed the International Covenant on Civil and Political Rights (ICCPR) in 1992 after realizing the importance of protecting civil and political rights around the world. Having done so, it must now report on its progress towards fulfilling the covenant’s obligations at regular intervals to the Human Rights Committee. With its signature on the ICCPR, the United States pledged to guarantee the equal rights of men and women to the enjoyment of all civil and political rights, including equal protection from sex discrimination. In 2006, the Human Rights Committee last examined whether or not the United States was living up to these commitments. In its final report, the review group harshly chastised the United States for its lack of comprehensive legislation against sex discrimination. In a report, the committee recommended that the United States take all steps required to achieve the equality of women before the law. When the Human Rights Committee first looked at U.S. compliance in 1995, it was just as harsh. Committee member Cecilia Medina Quiroga of Chile stated that the United States was in violation of the covenant since the Equal Rights Amendment was not adopted during a hearing where Assistant Attorney General Deval Patrick represented the United States State Department.

The Human Rights Committee’s closing findings echoed this worry when they noted that discriminatory attitudes and biases based on race or gender continue throughout society despite the existence of laws forbidding discrimination. In view of constitutional provisions approved by sister nations like Canada and the nations of Europe that directly address sex-based discrimination, the omission of the ERA from U.S. legislation is especially conspicuous. Legal researchers have noted that the legal safeguards for women in the United States are not in line with those in other western countries or with the international legal rights for women provided by CEDAW. However, the United States’ lack of a clear ban on sex discrimination gives cover to countries that continue to persecute women, shielding them from harsh condemnation from Washington. Proponents of ratification have maintained that many nations will not take their pledges seriously until the United States ratifies CEDAW. It’s possible the same thing might happen in the United States, where women don’t have full constitutional rights at home. Certainly, it gives the United States’ adversaries an easy issue to use in their human rights propaganda battles. While visiting Beijing for the Fourth United Nations World Conference on Women in 1995, Hillary Rodham Clinton and other attendees voiced concerns about China’s human rights record.

The Madison Amendment and its implication for the ERA

In view of the recent passage of the Madison Amendment, which was proposed 203 years before it was added to the Constitution, the ERA should be legitimate before the states for ratification. For the approval of the Bill of Rights, the Madison Amendment was presented in 1789. On May 7, 1992, Michigan became the thirty-eighth state to ratify, and on May 18, 1992, the Archivist of the United States officially designated the amendment as the twenty-seventh amendment to the Constitution. Different resolutions were passed by Congress on May 20, 1992, indicating agreement. The legality of the Amendment was called into doubt, however, after its adoption by the 38th state. Between its first proposal in 1789 and its eventual approval 203 years later, some detractors argue that the Amendment died. Supporters of the Amendment say that it became legally binding once the 102nd Congress declared it so in a declaratory resolution. Fifty-one states have approved it so far. For the first time, the Madison Amendment was presented without a timetable for ratification by three-quarters of the states.

Because it had not been adopted by three-fourths of the states in a sufficiently contemporaneous time period, some legal commentators had contended that the Madison Amendment was no longer before the states for ratification when the last state ratified. Article V of the Constitution lays forth the rules for amending the document, including Congress’s ability to propose amendments and choose their method of ratification. An amendment to the Constitution should be ratified within a reasonably contemporaneous time range so that all portions represent the will of the people at virtually the same era, even if Article V does not explicitly mandate ratification within a reasonable time limit in Dillon v. Gloss (1921). The Supreme Court’s decision in Dillon upheld the constitutionality of ratification deadlines set by Congress. The Court ruled that Article V does not indicate that an amendment, once submitted, is to be open to ratification indefinitely or that ratification in parts of the United States may be separated from that in others by many years and nonetheless be effective. The Court ruled that the Article V procedure of proposing and ratifying a constitutional change should not be separated by a large amount of time since they are not independent activities. The Court reasoned that because the amendment process is likely motivated by a notion of necessity with respect to an amendment’s subject matter, amendment proposals must be examined and disposed of soon. The Court reasoned that a proposed constitutional amendment must be ratified by 38 states within a ‘reasonable’ amount of time after it was submitted to the states since this was an implied requirement of Article V.

Many lawmakers, during the Madison Amendment discussion in Congress, accepted the importance of a majority view in the constitutional amendment process, but they also noted that Dillon’s articulation of this idea was pure dictum. As a result, Congress legislated the Madison Amendment based on the Supreme Court’s ruling in Coleman v. Miller (1939). Since the Child Labor Amendment did not specify a deadline for ratification, the Supreme Court in Coleman examined whether Kansas’ ratification was lawful. Legislators in Kansas contended that the Amendment was no longer timely since it had been pending before the states for over a decade without the requisite ratifications. However, in a ruling consistent with the logic advanced in Dillon, the Kansas Supreme Court ruled that the Amendment was timely in light of the issues of the day and so remained before the states. The Supreme Court agreed with the government’s argument on appeal, ruling that the question of timeliness should be decided by Congress rather than the courts. The Court acknowledged that Congress has the right to establish the contemporaneity of an amendment based on a range of political, social, and economic elements where no time restriction has been imposed in advance. Therefore, the Court decided in Coleman that Congress has a reasonable amount of time to decide whether an amendment has been approved after receiving notice that three-quarters of the states have ratified the amendment.

Senator Byrd acknowledged in congressional hearings that, without a time restriction, Congress may evaluate whether an amendment has been ratified within a reasonable amount of time after thirty-eight states have ratified. There were also claims that Congress, under Coleman, had the power to determine when an amendment became moot due to the passage of time. They cited a Supreme Court ruling that indicated lawmakers might decide for themselves whether or not the Madison Amendment had been properly adopted and whether or not a time limit of 203 years was fair. After the ERA has been ratified in the 38th state, Congress may reach the same conclusion. Theoretically, even if no state has accepted a proposed constitutional change, it is still an official act of Congress. However, as a proposed amendment to the Constitution, it still has the force of law.

The power of rescission and ratification after rejection

The states have the capacity to approve proposed modifications but not the right to reject them because Article V of the Constitution only addresses the positive terms of ratification. To take Article V at its value, a state that has rejected an amendment may still reconsider and ratify it in the future. Once a state has approved an amendment, it cannot withdraw its support for that amendment. The decision that a state cannot revoke its ratification was made on the grounds that the actions of one state might influence the likelihood of ratification or rejection by other states. The decision to ratify by a state that has previously rejected the amendment would not undermine the basis for following states’ actions. Allowing states to rescind their acceptance of constitutional amendments would create chaos in the amendment process. An issue of rescinding the Fourteenth Amendment was brought up by the Coleman Court.

In 1866, state legislatures in Georgia, North Carolina, and South Carolina all voted against ratifying the Fourteenth Amendment; nevertheless, under the leadership of new state governments in 1868, these states ratified the amendment. Meanwhile, after ratifying the Amendment, Ohio and New Jersey attempted to rescind their support. The Secretary of State listed both Ohio and New Jersey on his list of states that ratified the Fourteenth Amendment when Congress requested such a list. Despite subsequent resolutions by Ohio and New Jersey, Secretary Seward announced that twenty-eight states, including North Carolina, South Carolina, Ohio, and New Jersey, had ratified the Fourteenth Amendment. If the ratifications in Ohio and New Jersey were effective, notwithstanding the states’ attempted withdrawals, then the Amendment would have become part of the Constitution since Secretary Seward voiced uncertainty about the validity of the attempted rescissions.

The next day, Congress announced that the Fourteenth Amendment had been ratified by three-fourths of the states, including North Carolina, South Carolina, Ohio, and New Jersey. Accordingly, Congress deemed all prior rejections and attempted withdrawals of the Fourteenth Amendment to be null and void throughout its promulgation. Scholars have disagreed on how to approach the question of rescinding or withdrawing a prior rejection. Scholars who support revoking a state’s ratification claim that the concept of ‘contemporaneous consensus’ necessitates giving weight to the state’s most recent statement of opinion. The advantage of treating ratification as final is that it provides a defined conclusion to the modification process. Some academics worry that if rescission is an option, governments may treat the ratification process less seriously.

The State of Idaho and the leadership of the Idaho Legislature, among others, filed suit in the case Idaho v. Freeman (1982), asking the court to confirm that Idaho’s decision to rescind its earlier ratification of the Equal Rights Amendment was lawful. The District Court of Idaho ruled that the state of Idaho’s ERA ratification was null and invalid since it had been duly canceled. When the Supreme Court heard the appeal, it told the lower court to toss out the allegations as irrelevant because the deadline for seeking an extension had passed. The court did not rule on the legality of the rescinding, however. In Idaho v. Freeman, the district court ruled that it could analyze the state’s rescinding power since it was not a “political matter.” The Idaho lower court’s decision ran counter to the Supreme Court’s decision in Coleman.

As the Supreme Court explained in Coleman, the question of whether or not ratifications by state legislatures are effective in light of prior rejection or attempted withdrawal should be viewed as a political question pertaining to the political departments, with ultimate authority in the exercise of its control over the promulgation of the amendment resting with Congress. The Supreme Court has ruled that the question of whether or not state ratifications are genuine is a political one and hence outside the purview of the judiciary. Four states have tried to undo their adoption of the Equal Rights Amendment since Congress ratified it in 1972. But every state legislature that reversed its ERA ratification did so in the face of an express conclusion that it would be null and void in court. Furthermore, Congress has already determined that cancellations and withdrawal attempts are null and void. Because of this, it’s highly unlikely that these states’ efforts to repeal the ERA would succeed.

The ERA in the 21st century

The House and the Senate both have joint measures pending in committee that would officially eliminate the 1972 ERA’s ratification deadline. The instance of the 27th Amendment, approved more than a century after it was enacted by Congress, demonstrates that Article V of the Constitution does allow Congress exceptionally extensive jurisdiction over the amendment process. The question of how ratification of the ERA of 1972 might change the system if it happened today is thus pertinent. A constitutional guarantee of gender equality might have far-reaching consequences, but this article will narrow down on two main areas of concern: legal protections for transgender individuals and access to abortion options.

One of the main arguments against ratification of the ERA is that it might lead to government funding of abortions, which is a problem for many people. This is evident in the continuing fight over ratification in Virginia. Strong evidence suggests that reproductive justice concerns would not be affected by the ERA. The decision in Roe v. Wade (1973) was founded on the rights to privacy and due process, not on the principle of equality. Furthermore, the incorporation of an ERA into state constitutions has not significantly influenced the judgments of state courts on reproductive rights matters. However, Justice Ginsberg’s dissenting view in Gonzales v. Carhart (2007) shows that rights-based justifications for abortion have some grounding in precedent: “Women’s capacity to fulfill their full potential is fundamentally related to their ability to govern their reproductive life.” In light of this, the right to choose one’s own path in life, and the consequent right to be treated as an equal citizen are at the heart of legal challenges to excessive limitations on abortion operations. As of the current stance, it’s safe to assume that abortion will be raised in any new federal actions involving the ERA.

The subject of how the passage of the Equal Rights Amendment would affect the rights of transgender Americans has received shockingly little attention from legal experts. Concerns that the ERA’s ratification would allow same-sex marriage to have dominated discussions of the ERA’s potential consequences on the LGBT community in the past, but the Supreme Court’s 2015 ruling in Obergefell v. Hodges (2015), which upheld the legality of same-sex marriage, has rendered these concerns irrelevant.

In the original text of the ERA from 1972, the words ‘sex’ are used instead of the more specific terms ‘men’ and ‘women.’ A number of federal courts have affirmed the rights against sex-based discrimination under Title VII for transgender people. The 11th Circuit Court of Appeals stated in Glenn v. Brumby (2011), for instance, that a person is characterized as transgender precisely because of the notion that his or her behavior transgresses gender standards. Any sort of prejudice against a transgender person due to their gender nonconformity is, therefore, sex discrimination, regardless of how it is framed. With these and similar judgments in mind, it’s not out of the question that the 1972 ERA, if adopted, would be interpreted to prohibit discrimination based on a person’s gender identity or expression. In addition, pro-ERA groups like the National Organization for Women have argued that the ERA’s vague language might be read in a broad sense. This is an important subject that needs to be explored further in light of recent problems around transgender rights and the US government’s efforts to define gender as the permanent male or female sex assigned at birth.

The Women’s March on Washington, the #MeToo movement, and the unprecedented number of women elected to Congress and state legislatures in 2018 are all examples of the revival of women’s activism in recent years. Legislators and activist groups like the ERA Coalition have reintroduced the amendment on the national agenda in light of the recent resurgence of interest in gender equality issues.

Nevada’s ratification of the Equal Rights Amendment (ERA) in 2017 was the first state to do so since 1977, and it garnered widespread attention as a result. ERA supporter and state senator Pat Spearman put it this way: “This is the right thing to do, it’s the appropriate time to do it, and therefore we just need to do it.”

In the same year (2018), Illinois lawmakers made the same move. Illinois State Representative Steven Andersson (R), who helped steer the proposal, claimed, “This is our generation’s chance to remedy a long-standing wrong.” Republican backing for the Equal Rights Amendment (ERA) has grown with each subsequent ratification.

Advocates claim that passing the ERA into law will help the fight for gender equality in the twenty-first century, but many problems remain unanswered. The CUNY Graduate Center’s Julie Suk is a sociologist and legal expert who has wondered, “If passed in the next year, how should we understand the significance of a constitutional amendment offered over a century ago and accepted half a century before complete ratification?”

Jennifer Weiss-Wolf, a Women and Democracy Fellow at the Brennan Center, said that the ERA would give Congress the power to enforce gender parity through legislative measures and, more generally, the power to create a social model to formally recognize structural biases that affect women’s daily lives and often limit them. It would also provide uniformity to the many disjointed methods by which the present laws deal with issues of gender and economic inequality. She noted that the developing subject of menstruation fairness was one that the ERA could assist in improving and strengthening as one of the persisting legal and policy injustices it would help remedy.

In light of the current problem of inequality, Wilfred Codrington, a fellow at the Brennan Center, pondered whether the ERA, written as an explicit, permanent constitutional clause forbidding gender discrimination, is enough. Even if it’s doubtful if the amendment will fully achieve its backers’ ultimate aims, Codrington concluded, “lawmakers are justified in implementing the ERA.”

To better address a larger range of anti-discrimination issues with more depth, courts should also call on their constitutional jurisdiction rooted in equity, which is described as a recourse to the concept of justice, to modify or supplement the law.

John Kowal, Vice President for Programs at the Brennan Center, discussed the legal and procedural issues that Congress, courts, and the American people face because of the ERA’s unexpected resurgence. Kowal explored the benefits of restarting the amendment process should the attempt to ratify the 1972 version of the ERA fails on procedural grounds. He argued that constitutional reform is achievable when a large social movement backed by the people takes up the cause.

Key legal challenges today

Does the fact that Virginia voted to ratify the Equal Rights Amendment (ERA) indicate that it will be incorporated as the 28th Amendment to the Constitution? The solution is dependent on two problems of procedure, neither of which has a definitive answer.

Can Congress, over 48 years after the ERA was first proposed, move now to extend the deadline? There has been a long-standing argument among those who favor the ERA that, since Congress can impose a deadline, it can also remove it. This is precisely the goal of the Senate Joint Resolution, a bipartisan bill presently pending in Congress and co-sponsored by Senators Ben Cardin (D-MD) and Lisa Murkowski (R-AK). There has been no precedent for a waiver of the ERA deadline after it has already passed.

Secondly, whether it is possible for states to formally withdraw their support for a proposed constitutional change at any point prior to its ratification? During the passage of the Fourteenth and Fifteenth Amendments in the years immediately after the Civil War, Congress was faced with this subject twice. Each time, despite the supposed revocations by individual states, Congress passed resolutions pronouncing the amendments accepted. However, in 1980, a federal district court in Idaho found that the state’s decision to repeal the ERA was legal.

Which institution will make these determinations? Once three-quarters of states have ratified an amendment, the Archivist of the United States must provide a formal certification under a provision passed in 1984. Congress has taken action to declare an amendment legal whenever there has been any uncertainty about its legitimacy. The last time this occurred was in 1992, which was 203 years after the Congress first proposed the 27th Amendment.

The Office of Legal Counsel (OLC) of the Department of Justice published an opinion stating that the deadline established by Congress is enforceable and that the ERA is no longer pending with the States. Particularly noteworthy is the judgment’s rejection of the result reached in the 1977 OLC ruling, which had supported the previous extension of the ERA’s ratification deadline. The National Archives and Records Administration responded by saying that United States Archivist Daniel Ferriero would wait for a court order before certifying Virginia’s ratification or adding the Equal Rights Amendment to the Constitution.

However, would the law make a difference in this dispute? The Supreme Court determined in a 1939 case that determining whether or not an amendment has been ratified within a reasonable time frame is a “political subject” best left to Congress rather than the courts. Would the courts still follow this precedent if Congress acted to extend the deadline? How seriously would they take the opinion of the American people, who, according to recent surveys, overwhelmingly favor the ERA?

In short, the decision in Virginia to ratify the ERA has sparked a significant discussion about the law and public policy. Regardless of the outcome of the legal challenges to the ERA, it’s apparent that the debate over this landmark legislation, which has been ongoing for almost a century, will not stop in 2020.

Path forward

Critics of the ERA have used a number of strategies to slow its passage, including employing alarmist rhetoric to claim that many places with gender-specific programming would be banned if the ERA were to become law. Without the ERA, however, precise limitations have been set in light of the Supreme Court and other legal precedents to decide whether single-sex programs are lawful, such as when they are utilized to compensate for the historical, sociological, and economic disadvantage of a specific class. The ERA does not change any of these recommendations. The Equal Rights Amendment would provide even more weight to this jurisprudence. If the Equal Rights Amendment (ERA) is passed, opponents say women would have to deal with the military draft. Women have been welcome in all combat jobs since 2015 and make up a large portion of the military already. Further, the United States has shown no signs of imminently reinstituting the draft. The Equal Rights Amendment’s potential function in this scenario would be to guarantee that all service members, regardless of their gender, are afforded the same respect and dignity in the line of duty.

A Trump nominee at the U.S. Department of Justice and three Republican state attorneys general are among the government and state authorities who rejected the ERA and have stated that further state efforts to ratify the ERA are pointless given the original deadline. For this reason, they argue, the ERA ratification process must begin from scratch. Since the ratification deadline was included in the preamble of the amendment rather than the actual text adopted by the states, ERA supporters contend that it is not binding. Since similar efforts to reverse the ratification of the 14th and 15th Amendments were deemed to lack constitutional power and ignored, advocates likewise discount these five states’ efforts. Advocates further contend that since Congress can set and extend ratification dates, it may set and remove them as well. Applying this reasoning, the House Judiciary Committee in November 2019 approved a resolution to remove the time restriction from the ERA’s preamble. The House as a whole has yet to vote on the resolution, and the fate of a bipartisan companion bill is unknown at the moment.

This issue of the ERA’s applicability rests entirely in the hands of Congress. In order to represent the will of the people, the Congress may establish a ratification deadline within a reasonable and sufficiently contemporaneous time range. As a political concern with ultimate authority in the Congress, the definition of timeliness is a contentious issue. The decisions here make it very obvious that a truncated period of time should not be the deciding element in ratification. It is noteworthy that the 27th Amendment to the United States Constitution was approved nearly 203 years after it was originally offered in Congress. The majority of American citizens favor the Equal Rights Amendment (ERA), and with the current climate of unprecedented aggression on women and the services and policies they rely on, the time appears right for ratification.

Conclusion

In the future, the United States will be a leader, not a follower, on the global stage, and it will continue to preserve its basic principle of equality for all people, regardless of their gender or sexual orientation. This is the kind of future that the Constitution should represent. Although it is often held up as an example for the rest of the world to follow, the United States actually falls below 76% of nations whose constitutions protect women’s rights. Even though 25 states’ constitutions mandate sex equality in some form, the federal government still falls short of the progress accomplished in many of its states. The Constitution of the United States was created at a period when prevailing attitudes toward women and women’s duties were very different from what they are now.

The Equal Rights Amendment (ERA) is symbolic in that it sends a clear message that persons of all genders are created equal and deserve the protection of the law. As the country has done for the wealthy and powerful from its inception, this would show that women and individuals of all genders are equally valued and supported. However, it is not a panacea that will solve every problem. In other words, the ERA wouldn’t simply grant women and individuals of all genders new legal protections that haven’t already been won via litigation and action over the past century and a half. While the Trump administration and conservative politicians may try to roll down existing legislative safeguards for women, the ERA might give crucial support in litigation against sex discrimination.

The ERA’s impact is also highly sensitive to how the law is perceived and implemented. Without strict enforcement, anti-discrimination provisions in the Constitution and current laws amount to nothing. As a result, it is crucial that the public not only ratifies the ERA but also holds politicians accountable for the promise of gender equality in the ERA and advocates for other anti-discrimination measures that can reach areas outside of the ERA’s direct effect. There are many obstacles that women and individuals of all genders still have to overcome, but having their rights recognized as equal in the country’s foundational document should not be one of them.

Frequently Asked Questions (FAQs)

Whether it is possible for a state to reverse its decision to ratify a constitutional amendment while the amendment is still in the process of being approved?

A state’s decision to rescind its ratification of a constitutional amendment has never been recognized as being legal, despite the fact that Article V does not allow the states the authority of rescission and that precedent and legislative text support this conclusion. Before the deadline in 1982, the states of Idaho, Kentucky, Nebraska, Tennessee, and South Dakota made an effort to reverse or withdraw their approval of the Equal Rights Amendment. There has never been a state that has had its vote to reverse the adoption of a constitutional amendment recognized as legitimate.

Do some states have their own versions of ERAs or other laws that ensure equal rights regardless of a person’s sexual orientation?

Extensive evidence from decades of state-level equal rights law about the potential impact of a federal ERA is provided by the fact that 26 of the 50 states have a constitutional guarantee of equal rights on the basis of sex.

An Equal Rights Amendment at the federal level is the only way to guarantee complete and comprehensive protection from discrimination based on a person’s gender. Twenty-six states’ constitutions, however, do include or partially assure equal rights on the basis of sex: Alaska, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Virginia, Washington, and Wyoming. Despite having their own state-level equal rights amendments or guarantees, Florida, Louisiana, and Utah have yet to ratify the federal ERA.

Different states take different approaches to ensure that people of different genders have the same legal protections. Constitutions adopted by Utah and Wyoming at their 1890s admission to the Union guarantee full citizenship rights for women. Several states, including Colorado and Hawaii, made constitutional changes in the 1970s that were nearly word-for-word copies of the federal ERA. Some states’ constitutions, like those of New Jersey and Florida, include gender-neutral language that affirms the rights of both men and women. Some states’ protections for equal rights are more limited than others; for example, California’s equal rights guarantee only applies to the workplace and school, Louisiana forbids “arbitrary and unjustifiable” sex discrimination, and Rhode Island does not include abortion.

Is the ERA now part of the Constitution after it received the requisite 38 state ratifications?

The Equal Rights Amendment has received the endorsement of numerous prominent legal figures, including Laurence Tribe, Emeritus Professor of Law at Harvard University, and Erwin Chermerinsky, Dean of the University of California Berkeley School of Law. However, the ultimate step of publishing the ERA in the Federal Register with certification of its ratification as the 28th Amendment has yet to be taken by the Archivist of the United States pending resolution of political, legal, and judicial objections to its novel ratification procedure.

Would the ERA have a negative impact on the rights and protections that women already enjoy?

To make laws compliant with the Equal Rights Amendment, it is sufficient to rephrase them to use more sex-neutral terminology (such as “primary family caregiver” for “mother”) that nonetheless conveys the same meaning.

The majority of the rules governing families are established, enforced, and interpreted at the state level. If ERAs are enacted in a sex-neutral way focused on function rather than stereotypical sex roles, the benefits opponents allege women would lose remain constitutional, as shown by court rulings in states with ERAs. The same reasoning may be used to government regulations and benefits like Social Security. Over the course of many years, the legal system has been gradually shifting toward sex-neutral criteria in family court rulings, and politicians have been paying more attention to ensuring that the language and intent of their legislation are gender-neutral.

References

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