Nearly after a century after the National Women’s Party first proposed the Equal Rights Amendment, the article — which would prohibit discrimination on the basis of sex in the U.S. Constitution — has finally met a major benchmark.
On January 15, Virginia approved the amendment, making it the 38th state to do so. While long overdue, this development is significant, or at the very least symbolic. After Congress passed the amendment back in 1972, it went to the states, where, in order to become enshrined in the U.S. Constitution, it would need to be passed by 38 states (three-fourths of the 50 states). But when the congressional deadline rolled around in 1982, only 35 states had passed it. Over the past few years, though, women’s-rights groups such as National Organization for Women have revived calls for its ratification, and additional states have approved it: Nevada in 2017 and Illinois in 2018. And now, as of yesterday, Virginia.
“After nearly 100 years of working to put equality into the Constitution, a document that lays out our nation’s most fundamental rights and laws, we are taking the historic step to make ratification a reality,” Virginia state House Speaker Eileen Filler-Corn said of its passing. “Finally, women will be represented in the Constitution.”
But isn’t discrimination on the basis of sex already illegal?, you might be wondering, given the legal advancements that women have made over the past few decades — the Equal Pay Act, the Pregnancy Discrimination Act, and Title IX, for example.
While women have won many rights and protections in the past few decades, Martha Davis, a constitutional law professor at Northeastern University School of Law, told the Cut that the progress has largely been through statute or judicial opinions, which can be reversed much more easily than a constitutional amendment. In particular, Davis thinks the ERA could help strengthen protections against pregnancy discrimination: While the Pregnancy Discrimination Act was signed into law in 1978, Davis says the ERA “would make clear that discrimination on the basis of sex-specific characteristics would also constitute sex discrimination, and that pregnant women are entitled to equal treatment.”
Additionally, she says the version of the ERA that is currently being considered includes a section indicating that Congress can take necessary steps to enforce equal rights for women, which would potentially give them “greater authority to address violence against women, bias in state courts, bias in law enforcement, and so on.”
So will we soon see discrimination on the basis of sex — and as a corollary, issues like gender pay inequality — prohibited in the Constitution? While Davis says the development out of Virginia is certainly worth celebrating, the the path forward isn’t free of obstacles.
The main issue is that the deadline for ratification technically passed nearly four decades ago. And, while most legal experts agree that Congress has the authority to lift that deadline, that power has already been challenged. Earlier this week, the Justice Department’s Office of Legal Counsel issued opinion disputing that Congress could change the deadline, and in turn temporarily binding the National Archives and Records Administration — the agency that certifies ratification of amendments — from moving forward with the ERA. Additionally, five states have attempted to rescind their ratification, and three states recently filed a federal lawsuit in an attempt to stop the National Archives from ratifying the amendment. The opposition to the ERA is pretty predictable: Some conservatives, for example, fear that the ERA will be used to expand abortion rights.
However, Davis is optimistic that the growing public support for the ERA will inspire Congress to do what it can to ratify it. “There is increasing popular support for recognition of women’s rights in the Constitution, and I think that’s only going to continue,” she told the Cut. “This is a campaign that’s gone on for 96 years, and it has not gone away. There’s a lot of energy, and it’s just going to keep going.”