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"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." Ruth Bader Ginsburg, Associate Justice of the Supreme Court

August 26 marks the anniversary of the certification of the 19th Amendment, which granted some women the right to vote. Yet today, over 100 years since women gained voting rights, the Constitution still does not recognize women as equal to men. Supporters of the Equal Rights Amendment (the "ERA") have been advocating to change that for almost a century.

Today, 38 states have ratified the ERA, enough to certify the ERA as an Amendment and incorporate it in the Constitution. Due to a time limit for state ratification placed on the ERA in 1972, it has not been added to the Constitution. Equal status under the law for all genders is a fundamental human right. As we celebrate Equality Day on August 26, the anniversary of women gaining the right to vote, the Advocates for Human Rights calls on Congress to certify the ERA and ensure equality under law for women and other marginalized genders.

Importance of Incorporating Gender Equality in the Constitution

The ERA provides important protections and recognition of equality for women under the law. Section 1 of the ERA 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." The other two sections of the ERA give Congress the power to enforce the amendment and provide that the amendment will go into effect two years after ratification.

The ERA would prohibit the United States, or any State, from denying equal rights under law on account of sex or gender, in a way not currently provided by the Constitution. (Maloney, 2022). The Amendment would make gender/sex a category subject to strict scrutiny in the judicial system, guaranteeing equal footing for women in the legal system, and ensuring that government programs and federal resources benefit men and women equally.Treating discrimination on the basis of gender as a suspect classification would prohibit sexual discrimination in the same way the law prohibits discrimination on the basis of race, religion, and national origin. While the Fourteenth Amendment provides some protection for women against gender discrimination by the government, the ERA goes beyond the current Constitutional protections to specifically provide for gender equality; it offers an "overriding guarantee" of equal protection for women.(Maloney, 2022).

History of the Equal Rights Amendment

The ERA was written in 1923 by Alice Paul, the founder of the National Woman's Party, but it initially failed to gain traction, in part due to internal dissent within the women's rights movement (Law, 2021). In the 1920s, working women prioritized getting protections for women in the workplace, and they feared that adoption of the ERA would thwart efforts to make the workplace safer, including laws that made improved factory safety and limited the number of hours women could work.

Decades later, Congresswoman Martha Griffiths took up the fight to get the ERA ratified. From the time she was elected in 1955, Griffiths advocated every year for the House to adopt a bill that would allow ratification of the ERA - an endeavor that was unsuccessful for decades. In 1970, Griffiths filed a discharge petition, with the support of a majority of House members, which forced the legislation to move out of Committee and to a vote by the full House. On the heels of the discharge petition, the House passed the bill, only for it to fall in the Senate. The next year she introduced a revised version of the ERA, and, on October 12, 1971, the House passed the bill, followed by the Senate on March 22, 1972 (Law, 2021). Nonetheless, the ERA failed to pass the final hurdle to add the ERA to the Constitution: ratification by at least 38 states within a seven-year deadline. Initially, states quickly approved the Amendment, but State approvals slowed as the years passed. Congress extended the deadline for State ratification until 1982, but when the deadline expired only 35 states had passed the Amendment - three states short of the three-quarters majority required to amend the Constitution.

In the last five years, the ERA gained momentum once again. Nevada ratified it on March 21, 2017, followed by Illinois on May 30, 2018. At last, Virginia became the thirty-eighth state to ratify the ERA on January 15, 2020 (Law, 2021). Virginia's ratification gave the ERA support from the required three-quarters majority to instill it in the Constitution, but opponents claimed that Virginia's ratification had no effect because an insufficient number of states ratified it by the 1982 deadline.On January 27, 2020, the Justice Department, under the Trump Administration, issued an opinion that blocked the certification and publication of the Amendment - even though it had been ratified by three-fourths of the states and two-thirds of both chambers of Congress.

A debate continues over the efficacy of the deadline. Supporters of the ERA argue that the deadline is part of the preamble to the ERA, not a part of the Amendment itself, and it does not nullify the effect of ratification by 38 states. The wording of Section 3 of the Equal Rights Amendment states, "This amendment shall take effect two years after the date of ratification." As the date of ratification is defined as when the 38th state ratifies the ERA, this would mean the ERA should have taken effect January 27, 2022, when Virginia ratified the Amendment. Supporters further argue that the Constitution provides that Congress cannot bind a future Congress, and thus the deadline set by a previous Congress was unlawful and uncontrolling.

Once President Biden took office, the fight for the ERA returned to the national agenda. On January 27, 2022, 156 cosponsors introduced House Resolution 891, which affirms that the ERA has been validly ratified and is now the 28th Amendment of the U.S. Constitution. On the same day, President Biden released a statement in support of the ERA:

"Today, as the House announces a resolution on the Equal Rights Amendment, I once again want to express my support for the ERA loudly and clearly. I have been a strong supporter of the ERA ever since I first ran for the Senate as a 29-year-old. We must recognize the clear will of the American people and definitively enshrine the principle of gender equality in the Constitution. It is long past time that we put all doubt to rest. I am calling on Congress to act immediately to pass a resolution recognizing ratification of the ERA. As the recently published Office of Legal Counsel memorandum makes clear, there is nothing standing in Congress's way from doing so. No one should be discriminated against based on their sex-and we, as a nation, must stand up for full women's equality." - President Joe Biden (Biden, 2022).

Modern Day Arguments Against the ERA

Modern opponents of the ERA oppose codifying the right of individuals to be free from discrimination on account of their gender or sexual orientation. These opponents allege that government should not be required to respect gender definitions other than binary male/female gender categories based on biological sex. They claim that individuals who identify as transgender, nonbinary, pansexual or queer, among others, are embracing "gender dysmorphia", and allege that these are not permissible ways to interpret gender. In addition to arguing that government should not be forced to recognize gender definitions that opponents challenge, opponents of the ERA allege that the ERA's adoption of so-called "gender ideology" or "gender dysmorphia" will have concrete adverse effects on society. By way of example, they allege the ERA would force biological women out of competitive sports because trans women will outcompete individuals born as biological females. They claim women and children will be at greater risk of assault if they are forced to share bathrooms and locker rooms with individuals born as males.

Far right groups across the world have rallied against laws, treaties, and policies that support gender equality, abortion and reproductive rights, sexual education, and LGBTQ rights, alleging thatgovernmental adoption of "gender ideology" will threaten the "traditional" family (defined as a biological male husband, his biological female wife, and their children) and conservative Christian values. The Istanbul Convention, an international treaty which recognizes violence against women as a violation of human rights, is a frequent target of these groups. As noted in The Advocates for Human Rights' reportA Rollback for Human Rights: The Istanbul Convention Under Attack, "the opposition portrays pro-convention supporters as destructive to the traditional family because the treaty's use of "gender" is not a male-female binary." (Advocates, 2021).

The attacks on the ERA based on gender ideology are nothing more than a red herring. There is no evidence that the ERA would lead to women and girls being forced out of athletics, or that women and children are harmed by gender neutral bathrooms or locker rooms. Several state Constitutions already recognize women as equal to men, and these alleged consequences have not come to pass. Just as the Istanbul Convention has led to significant protections for women across the world against violence, the ERA would lead to significant protections for women and other marginalized genders in the United States. This year's Equality Day comes at a time when women's reproductive rights have been rolled back compared to previous generations. In 2022, the gender gap in pay is still evident, as women earned 84% of what men earned in 2020. (Barroso and Brown, 2021). For these and many other reasons, it is essential to protect the rights of women and other marginalized genders by instilling the principle of equality among genders in the Constitution.

By: Megan Walsh and Mirnesa Halilovic

References

Advocates. "A Rollback for Human Rights: The Istanbul Convention Under Attack." The advocates for human rights, December 2, 2021. https://www.theadvocatesforhumanrights.org/Publications/Index?id=510.

Barroso, Amanda, and Anna Brown. "Gender Pay Gap in U.S. Held Steady in 2020." Pew Research Center. Pew Research Center, May 25, 2021. https://www.pewresearch.org/fact-tank/2021/05/25/gender-pay-gap-facts/.

Biden, Joe. "Statement from President Biden on the Equal Rights Amendment." The White House. The United States Government, January 27, 2022. https://www.whitehouse.gov/briefing-room/statements-releases/2022/01/27/statement-from-president-biden-on-the-equal-rights-amendment/.

History Alliance, National Womens. "Detailed Timeline." National Women's History Alliance, October 23, 2018. https://nationalwomenshistoryalliance.org/resources/womens-rights-movement/detailed-timeline/.

Law, Tara. "The History of the Equal Rights Amendment." Time. Time, April 30, 2021. https://time.com/5657997/equal-rights-amendment-history/.

Maloney, Carolyn. "Equal Rights Amendment." Congresswoman Carolyn Maloney, 2022. https://maloney.house.gov/issues/womens-issues/equal-rights-amendment#:~:text=The%20ERA%20is%20a%20constitutional,of%20men%20and%20women%20by%3A&text=Ensuring%20that%20government%20programs%20and%20federal%20resources%20benefit%20men%20and%20women%20equally.

Schwab, Nikki, Ginsburg: Make ERA Part of the Constitution, U.S. News and World Report, April 18, 2014. https://www.usnews.com/news/blogs/washington-whispers/2014/04/18/justice-ginsburg-make-equal-rights-amendment-part-of-the-constitution