It’s been 98 years since the Equal Rights Amendment—which would expressly forbid any sort of discrimination on the basis of sex—was first introduced. A century of fighting later, it’s both closer than ever to being added to the US Constitution, and out of time.
Amending the Constitution is a two-step process, requiring first passage by Congress, then ratification by three-fourths of the states. Five decades after the ERA was approved by Congress in 1972, Virginia ratified the amendment in 2020, and the quorum of 38 states was finally reached. But there is a problem.
When it was approved, the amendment was initially meant to be ratified by 1979, a deadline Congress later extended to 1982. The push to get the amendment ratified continued after that, even though the deadline has passed. A federal judge ruled this month that it’s too late to add the amendment to the constitution, because the process should have been concluded nearly forty years ago. According to this decision, the whole process has to start again—with new Congressional approval.
An expiration date on equality
But this week, the House of Representatives passed a bill to remove the deadline. The vote now has to pass the Senate, where it needs to clear 60 votes. In the House, only four Republicans voted in favor of it, and in the Senate it would likely need the support of at least 10 Republicans.
Should the vote pass and the amendment’s ratification by the states is confirmed, the US Archivist will add it to the Constitution, then send it to the Justice Department for the attorney general to sign. It will then take two years before the amendment would finally go into effect. Even then, it still may not become law.
The amendment will almost certainly wind up in front of the Supreme Court, said Carol Jenkins, the co-president of the ERA Coalition, a group of organizations working to add the ERA in the Constitution, in an interview with Quartz at the end of 2019. Legal challenges might come from the states that tried to walk back their ratification but were denied the right to change a constitutional decision made by a previous assembly, she said. The deadline removal by Congress might be challenged, too.
All this would likely add years to the tribulations of an amendment that was first presented in 1923. Yet Jenkins is optimistic that as the ERA progresses through the courts, the country will become more used to the idea of equality between the sexes.
Why does the ERA matter?
Most state constitutions, including in states that haven’t ratified the amendment, already include amendments for gender equality, and there are several federal laws (such as the Equal Pay Act of 1963, the Pregnancy Discrimination Act of 1978, and Titles VII and IX of 1964 and 1972 respectively) that make discrimination against women illegal. So why is the ERA still important?
Adding the amendment to the Constitution would give equality between sexes the highest possible legal protection, filling any gaps left open by individual laws or non-binding legal precedents. Making discrimination based on gender illegal on a constitutional level would provide stronger grounds for cases concerning discrimination in the workplace or gender violence, for instance.
The amendment would shape future laws, too. Federal courts would have to evaluate any law that might attempt to deny access to contraceptive care on the grounds of religious beliefs to determine whether it creates unequal treatment for women—a standard not currently required for a law to be constitutional.
More philosophically, referencing discrimination on the basis of sex establishes it as a reality recognized by the Constitution. In turn, claims of gender discrimination—in wages, for instance, or career opportunities— would rest on much more solid ground: victims of gender-based discrimination would not need to demonstrate that such discrimination exists before demonstrating they were a subject to it.