The Equal Rights Amendment, Nearly 100 Years in the Making, is Poised to Finally Become Part of the
Updated: Feb 10
It's been nearly a hundred years in the making, but the Equal Rights Amendment (ERA) soon may be ratified, bolstering calls for equal pay and greater gender diversity in the workplace.
When American women won the right to vote — a milestone commemorated on Women’s Equality Day, which marks the anniversary of the Aug. 26, 1920 certification that the 19th Amendment had been ratified — it was just one part of an even larger fight for equality. From Mary Church Terrell’s endeavors to make sure African-American women were included in the fight for suffrage, to Margaret Sanger’s work to promote access to birth control, to Ruth Bader Ginsburg’s efforts to eliminate sex discrimination in the law, women before and after that day in 1920 have fought for wider rights. And yet, the U.S. Constitution does not say that people are equal regardless of their sex.
This fact came close to changing in 1972, when the U.S. legislature passed the Equal Rights Amendment (ERA), which stated that rights cannot be denied “on account of sex.” But after conservatives mobilized opposition to the ratification of the proposal, the amendment fell short of the three-quarters majority needed to add the ERA to the Constitution. Now, as the Equal Rights Amendment has regained momentum — with two more states, Illinois and Nevada, recently ratifying it — advocates say that there’s a new opportunity for the ERA to move ahead.
Now that Virginia has a Democrat-controlled legislature and governor, it is poised to become the 38th state to ratify the amendment. Two legal hurdles—a deadline for the amendment's ratification that has long since passed and five states' rescinding ratification—remain. But if Virginia ratifies the amendment, employment law experts say that courts may let it stand.
What would the adoption of the E.R.A. mean today?
Women’s rights have come a long way since Alice Paul first proposed the E.R.A. States have enacted their own laws broadly prohibiting sex-based discrimination, and thanks to a feminist legal campaign led by Supreme Court Justice Ruth Bader Ginsburg and the ACLU, the Supreme Court recognized sex discrimination as violating the equal protection clauses of the 5th and 14th Amendments in cases liked Frontiero v. Richardson and United States v. Virginia. Due to this progress, the E.R.A.’s ramifications wouldn’t feel quite as revolutionary today, it would still have some impact, because it is much better to have a basis for one’s rights in the Constitution.
Ruth Bader Ginsburg wrote in 1978 in the Harvard Women's Law Journal, now the Harvard Journal of Law & Gender, "With the Equal Rights Amendment, we may expect Congress and the state legislatures to undertake in earnest, systematically and pervasively, the law revision so long deferred. And, in the event of legislative default, the courts will have an unassailable basis for applying the bedrock principle: All men and all women are created equal."
The equal rights amendment, in sum, would dedicate the nation to a new view of the rights and responsibilities of men and women. It firmly rejects sharp legislative lines between the sexes as constitutionally tolerable. Instead, it looks toward a legal system in which each person will be judged on the basis of individual merit and not on the basis of an unalterable trait of birth that bears no necessary relationship to need or ability. As the Federal Legislation Committee of the Association of the Bar of the City of New York explained:
[T]he Amendment would eliminate patent discrimination, including all laws which prohibit or discourage women from making full use of their political and economic capabilities on the strength of notions about the proper “role” for women in society. Any special exemptions or other favorable treatment required by some women because of their physical stature or family roles could be preserved by statutes which utilize those factors – rather than sex – as the basis for distinction.
If Virginia ratifies the ERA and the House passes its resolution, the spotlight will be squarely on the Senate, where two Republicans—Alaska Republican Lisa Murkowski and Maine senator Susan Collins—have already signed on to the resolution. With the 2020 election less than a year away, vulnerable blue- and purple-state Republican senators may not be especially eager to declare their de facto opposition to ensuring that the law treats men and women equally.