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‘It’s a scandal, quite frankly’: US Equal Rights Amendment still faces uphill battle

Alexandra Villarreal
·8-min read
<span>Photograph: Jonathan Ernst/Reuters</span>
Photograph: Jonathan Ernst/Reuters

With renewed attention on anti-discrimination policies following the #MeToo movement and a record number of women serving in Congress, a nearly century-long effort to explicitly enshrine gender equality in the United States constitution may finally be coming to a head.

If the Equal Rights Amendment (ERA) were incorporated into America’s founding document, it would represent a huge victory for women and people across the gender spectrum, whose fundamental rights are too often tied to partisan disagreements.

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But amid legal controversies, disingenuous talking points and a chronic lack of urgency, the landmark amendment still faces an uphill battle.

“It’s outrageous – a scandal, quite frankly – that women still have to be in the begging position for their rights,” said Carol Jenkins, president and chief executive of the ERA Coalition and the Fund for Women’s Equality.

First drafted in 1923 and revised over the years, the proposed article is a constitutional guarantee that the “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”. It would also give Congress the power to enforce gender equality through legislation, and would take effect two years after ratification.

Proponents argue the ERA would send a powerful signal and be used as a tool to effectively challenge restrictions and loopholes currently undermining people’s hard-won protections.

As chronicled in last year’s hit television series Mrs America, the fight for the ERA ramped up in the 1970s, bolstered by a strong feminist movement. But it quickly garnered enemies in the form of conservatives with traditional values, who would eventually ensure its demise.

It’s outrageous – a scandal, quite frankly – that women still have to be in the begging position for their rights

Carol Jenkins

When Congress passed the ERA in 1972, lawmakers imposed a seven-year deadline for ratification by at least 38 states. That time limit eventually got extended to 1982, but in the meantime, anti-feminist attacks haunted messaging around the amendment, stifling progress.

By the early 1980s, proponents were only able to drum up support from 35 states – three short of the required threshold – even as Nebraska, Tennessee, Idaho, Kentucky and South Dakota tried to invalidate their previous decisions to ratify.

“We will not again seriously pursue the ERA until we’ve made a major dent in changing the composition of Congress as well as the state legislatures,” said Eleanor Smeal, then the president of the National Organization for Women.

The ERA languished for decades, nominally re-introduced in Congress year after year but largely sidelined and ignored. Then, during Donald Trump’s incendiary tenure that brought the plight of American women into stark relief, three holdout states, Nevada, Illinois and Virginia, ratified back to back.

Suddenly, nearly 100 years of advocacy had reached its apex: the endorsement of 38 states. But the former president’s justice department claimed the new ratifications didn’t pass muster, setting up a showdown over whether Congress’ arbitrary deadline rendered them moot.

Last month, a federal judge weighed in, dismissing arguments made by several state attorneys general who were trying to get the ERA certified as the 28th amendment. The deadline “expired long ago”, the judge wrote, and recent ratifications “came too late to count”.

Similarly, debate persists over whether the five states that tried to rescind, withdraw or sunset their approvals can actually do so, although precedent around past amendments suggests they probably can’t. In March, North Dakota lawmakers nevertheless voted to rescind their support as well.

Despite so many roadblocks, the ERA’s proponents are still looking for ways to finish the work their predecessors started soon after successfully advocating for the right to vote.

“Really, at this point, I think we’re just trying to get it done. We’re just trying to get this on the books,” said Robin Bleiweis, a research associate with the Women’s Initiative at the Center for American Progress.

Last year, and again several weeks ago, the Democratic-controlled House of Representatives voted largely along partisan lines to remove the ERA’s congressional deadline, shirking the justice department’s guidance under Trump.

The amendment now faces an uncertain fate in the Senate, where only two Republicans – Lisa Murkowski and Susan Collins – have jumped onboard. While anti-abortion lawmakers lean hard on the lightning rod as their reason to oppose the ERA, advocates are trying to convince a larger cohort of right-leaning senators such as Shelley Moore Capito and Mitt Romney to cross party lines.

“We’ve lived this way, unequally, for as long as we’ve been in existence, and to some extent we can’t quite grasp that we actually can change this,” Jenkins said. “But it requires now, at this moment, 60 votes in the Senate.”

If all other options flounder, Congress can always propose the amendment anew, restarting the ratification process.

“We’re never gonna give up – never, ever, ever,” the New York representative Carolyn Maloney, an outspoken champion of the amendment, told the Guardian. “Failure’s impossible.”

Carolyn Maloney on Capitol Hill in Washington DC on 24 August 2020.
Carolyn Maloney on Capitol Hill in Washington DC on 24 August 2020. Photograph: Tom Williams/AFP/Getty Images

Without the ERA, Americans are left at the whims of three mercurial government branches, which can bolster rights but also take them away.

Attorneys have been able to secure major triumphs for women by arguing that the 14th amendment, which mandates “the equal protection of the laws”, applies to gender equality. But not everyone on the bench agrees.

“Certainly the constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t,” the late supreme court justice Antonin Scalia said.

If the ERA were to succeed, individuals would finally be armed with irrefutable proof of their right to gender equality under the constitution. That, in turn, could help them defend themselves from discrimination and prevent their lives and livelihoods from becoming political footballs.

“I don’t think that our rights should be dependent on who has the majority in Congress, or who’s the speaker, or who’s the majority leader in the Senate, or who’s the president, or who’s on the supreme court,” Maloney said.

“If you are bedrock protected in the constitution, then they can’t roll back your rights. They have to work off that document.”

The ERA enjoys overwhelming support, with backing from anywhere between 78% and 94% of Americans, according to two surveys.

Life under Trump made clear to many citizens that misogyny still underpins American society and government. The single-term commander-in-chief was elected to the nation’s highest office in 2016 despite his comments about grabbing women by the genitals, on tape. He has faced few repercussions for more than 20 sexual misconduct allegations lodged against him.

Just after Trump’s inauguration, millions took to the streets for the Women’s March, the largest single-day protest in US history. Soon, pink “pussyhats” – a reference to his degrading and predatory comments about women – became a symbol of resistance.

A demonstrator holds a sign supporting the Equal Rights Amendment in Washington DC on 19 January.
A demonstrator holds a sign supporting the Equal Rights Amendment in Washington DC on 19 January. Photograph: Joshua Roberts/Reuters

But as critics decried Trump’s alleged misconduct and vitriol, he spent four years elevating policies and people on the wrong side of women’s rights – perhaps most famously Brett Kavanaugh, another alleged perpetrator.

After televised, high-profile hearings watched by millions, where Christine Blasey Ford carefully recounted how Kavanaugh violated her, he nevertheless slid onto the Supreme Court for a lifetime appointment. Two years later, so did Amy Coney Barrett, a judge who’s notoriously ambivalent on reproductive rights.

Their confirmations – alongside the appointments of more than 200 federal judges, many of them ideological and rightwing – underscored the serious risks that exist in a world without the ERA.

“A lot of what has been gained is judge-made law, and you can rest on your laurels and think it’s all secure. But in fact, there’s a long history of the courts eroding and diminishing rights previously recognized by the courts,” said John Kowal, vice-president of programs at the Brennan Center for Justice.

Meanwhile, the safeguards that currently exist have failed to shield American women from an endless cycle of hardship and victimization. In a country that has never elected a female president, where women still make 82 cents to a man’s dollar, a whopping 42% of working women say they have suffered gender discrimination while on the job.

Almost one in five women experience completed or attempted rape, while nearly one in four are subjected to severe physical violence by an intimate partner.

Even though the supreme court established the right to an abortion back in the 1970s, state legislatures are still waging a war against comprehensive reproductive care, introducing more than 500 abortion restrictions this year alone.

And, faced with the US’s segregated labor market amid a recession connected to the coronavirus pandemic, women have shed a net 5.4m jobs – a million more than their male counterparts.

“Gender inequality is rarely talked about like a crisis,” Bleiweis said.

“Long-term, disparate treatment that, you know, pushes people into poverty, into violence – that is absolutely a crisis, and should be treated as such.”