March is Women’s History month. And today, March 8, is International Women’s Day. But here in the United States, women still do not have equal rights. In women’s marches, older women now hold signs that say “I can’t believe I still have to protest this fucking shit” and “My arms are tired from holding this sign since the 1960s.”
Nothing illustrates women’s inequality better than the failure of the Equal Rights Amendment to be ratified. It was first introduced in Congress almost a century ago in 1923.[1] But it took Congress 49 years to pass it.[2] For an amendment to become part of the Constitution, 2/3 of the state legislatures must then vote to ratify it. But only 37 states have done so – one vote short of the needed total. [3] In the 47 years since Congress passed it,[4] 13 states have refused to support women’s equality.
Even worse, five states have rescinded their ratification of the ERA.[5] Because it is unclear that states have the power to rescind a ratification, it remains to be seen if these actions set the ERA back even further.[6] Moreover, the original deadline for ratification of 1979 and an extension to 1982 has passed, so Congress would need to extend the deadline.[7] Recently, bills have been introduced to do just that.[8]
The latest state to fail to ratify the ERA is the Commonwealth of Virginia. In light of the scandals that have plagued three highest officials in the state,[9] including accusations of sexual assault,[10] this state could have improved its reputation by ratifying the ERA. Instead, it was never brought to a full vote before the Virginia legislature.[11]
What is so scandalous about this amendment that has made its passage impossible in almost a century? It says only this: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”[12] It simply requires that men and women be treated equally. How can anyone oppose gender equality?
The opposition’s reasons for opposing the ERA consist mainly of quaint paternalistic notions that have been nullified with the passage of time and new laws. The latest reason is that “tax dollars could be used for abortion.”[13] In support of this argument, opponents cite a New Mexico state case, New Mexico Right to Choose/NARAL v. Johnson.[14] They claim that this case ruled that “since abortion is unique to women, restricting abortions is a form of sex discrimination.”[15] But that is not the ruling in this case. In fact, the ruling turned on medically necessary treatment, including abortion, being made available to women equally to men, not the fact that “abortion is unique to women.” 975 P.2d 841 (1998).
Opponents to the ERA also claim that supporters want to overturn all restrictions on abortions based purely on their rejection of pro-lifers’ proposed amendment to the ERA: “Nothing in this Article shall be construed to grant or secure any right relating to abortion or the funding thereof.”[16] But equal rights have nothing to do with abortion where only women can have an abortion. If men were being provided abortions and women were not, equal rights would have indeed required that abortions be provided to women in the same way. But of course that is not the case So this provision was rejected because it is irrelevant to the ERA.
Opponents make other claims as well. For example, they claim that women are paid 98% of men’s earnings and that these statistics are not meaningful because they do not consider occupation.[17] But when occupation is considered, the gap widens.[18]
They also claim that current laws are working and that women are already getting equal treatment. If that were true, why are they opposing a constitutional amendment that would merely formalize laws already in place? Perhaps it is because current laws are not working. Look at the Equal Pay Act.
Last, opponents of the ERA claim that it will end preferential treatment for women embedded in current laws, like those that benefit pregnant women.[19] This argument suffers from the same flaw as that for abortion – men cannot get pregnant so equal treatment between pregnant men and women is impossible. The ERA will not change that.
Opponents also claim without support that all bathrooms will be unisex if the ERA is enacted.[20] Equality is related to the number of bathrooms; it does not require the same bathroom.
If a person opposes the ERA, then that person believes that men and women are not equal. In the United States, the ceiling for women is not glass; it is clearly visible in the form of a Constitution that fails to provide for gender equality. Until the ERA is enacted, women are second-class citizens in this country.
[1] ERA.com, The History of the Equal Rights Amendment.
[3] Alison Thoet, One of these states could ratify the Equal Rights Amendment, PBS, February 26, 2019.
[5] Maya Salam, What is the Equal Rights Amendment and Why Are We Talking About It Now?, The New York Times, February 22, 2019. h
[7] ERA.com, The History of the Equal Rights Amendment.
[8] Alison Thoet, One of these states could ratify the Equal Rights Amendment, PBS, February 26, 2019.
[9] Alan Suderman, Virginia Gov. Northam, Lt. Gov. Fairfax reject growing calls for resignation, Associated Press/PBS, February 9, 2019.
[10] Norman Leahy, A Virginia House committee hearing on the allegations against Justin Fairfax is probably a trap. But for whom?, The Washington Post, February 27, 2019.
[11] Alison Thoet, One of these states could ratify the Equal Rights Amendment, PBS, February 26, 2019.
[12] Proposed Amendment to the Constitution of the United States.
[13] PBS, One of these states could ratify the Equal Rights Amendment, February 26, 2019.
[14] Douglas Johnson, The ERA and Abortion: Not So Simple, National Right to Life, April 4, 2000.
[15] Eagle Forum, 10 Reasons to oppose the Equal Rights Amendment (last visited 3/6/19).
[18] Bureau of Labor Statistics, Highlights of women’s earnings in 2017, August 2018; Bureau of Labor Statistics, Women’s earnings 83 percent of men’s, but vary by occupation, January 15, 2016.
[19] Eagle Forum, 10 Reasons to oppose the Equal Rights Amendment (last visited 3/6/19).