Is 2021 the year of the Equal Rights Amendment? I certainly hope so

If you believe that women’s rights to equality under the law are enshrined in the US constitution, and that the Equal Rights Amendment consecrating women’s rights passed decades ago, then you’re wrong.

The ERA was famously drafted by Alice Paul of the National Women’s Party in the early 1920s and was introduced in every Congressional session since the presidency of Woodrow Wilson. The bill gained significant momentum in the women’s movement of the 1970s and was approved by 35 states before the end of 1977. But a group of conservatives managed to sneak in a preamble with a deadline for ratification – in 1979, the deadline was extended to 1982, and then expired without the requisite number of states (38) ratifying the amendment. In 2017, 45 years to the day after Congress passed the ERA, Nevada became the 36th state to ratify it, Illinois the 37th in 2018, and in 2020 Virginia became the 38th. Five states (Idaho, Kentucky, Nebraska, South Dakota, and Tennessee) have since rescinded their ratification, basically because they’re worried that it will pave the way for women to more easily access abortions. 100 years later, it still isn’t law.

Today, the debate centres on whether states can rescind ratifications, whether Congress, ever the authority, had to set a deadline for a constitutional amendment in the first place (and then change it), or whether it’s a matter of states’ rights. Another issue is whether a deadline in a constitutional amendment is a political question, and thus for Congress to decide, or whether it is a legal question and should be left up to the courts. As a result of the deadline controversy and the withdrawn ratifications, the amendment is still not yet part of the constitution. 

“Women fighting against it [the ERA] truly don’t understand how few rights they have.” That’s according to Susan Zimet, author ofRoses and Radicals: The Epic Story of How American Women Won the Right to Vote. The former New York politician, author and activist explained to me: “First and foremost, time changes things. Historically, when we talked about equal rights, people talked about things like unisex bathrooms, women in the draft and abortions. But unisex bathrooms and women in combat happened without the ERA. And ERA or no ERA, legal or illegal, women always got abortions and they always will. We all need to understand the only enshrined right in the constitution for women is the right to vote.”

And she’s right. From the wage gap to sexual harassment, paid family leave, and access to healthcare for women, all of these areas would be affected by the passage of the ERA. 

Wait, you might ask, “What about the 14th amendment and the Equal Protection Clause, aren’t women’s rights protected there?” For decades, the US Supreme Court has ruled that the 14th Amendment provides certain protections against sex discrimination, but not to the same extent as protections against racial discrimination or national origin. For instance, for a law that discriminates based on race, the courts must apply an extremely strict standard of review, which is almost impossible to pass. In a case where sex discrimination is an issue, however, the legal standard of review is less strict. Without the ERA, women, as a group, remain more vulnerable to discrimination on the basis of sex.

In spite of what might seem such an obvious piece of legislation (the explicit inclusion of half of the population in the constitution’s protections), the fight for women’s rights has not been an easy one, or a simple one. While history books extol the virtues of suffragists like Susan B Anthony and Elizabeth Cady Stanton, most texts conveniently leave out the incipient racism in the white, mainstream women’s rights movement of the 19th and 20th centuries.

Strategically, politicians pitted white women suffragists against Black abolitionists (both men and women), in the fight for the right to vote. Black men got the vote first in 1870 under the 15th Amendment (under law if not in practice). This infuriated white women, most of whom believed that it was their whiteness that entitled them to the right to vote first, before Black people (men or women). And even after women won the legal right to vote in 1912, Black women (and Black men) were often excluded from voting by violent deterrents (such as lynching), as well as non-violent deterrents like poll taxes. 

With a slim majority in Congress and Biden in the Oval Office, the Democrats have an admirable legislative agenda. I asked Zimet what she thought about the bill’s chances to pass this year. “Last year legislation was passed in the house to take away the time limit and it passed with major sponsorship, including Rep Senator Lisa Murkowski of Alaska. [Sen] Mitch McConnell (R-KY) refused to bring it to the floor; I suspect that it will be reintroduced in this legislative session and that it will pass the Senate and the House. But that doesn’t mean there won’t be lawsuits.”

I hope she’s right. Sure, women have more rights than they did before 1974 when banks could refuse a woman a credit card, or in 1977, when women could still (legally) get fired for pregnancy. But there is no constitutional foundation that explicitly prohibits sex discrimination in the 21st century in the world’s “greatest democracy”; the words “woman” and “sex” don’t even appear in the constitution.

The deed is long overdue. In the words of Tupac Shakur, “I know you’re fed-up ladies but keep your head up.”