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Next year will mark the 100th anniversary of the ratification of the 19th Amendment to the U.S. Constitution, which gave the women the right to vote. That centennial could coincide with yet another change to the country’s founding document centered on equality between the sexes: the Equal Rights Amendment.
The proposed amendment would outlaw discrimination on the basis of sex. Women’s rights activists began campaigning for the ERA shortly after women’s suffrage was passed, and the movement came incredibly close to achieving its goal in the 1970s. By 1972, the amendment had been passed in both houses of Congress with strong majorities, meaning it would become law once ratified by 38 states.
Over the course of the following six years, 35 states had approved the ERA, but the momentum was halted amid strong conservative opposition. The amendment sat in legislative limbo for four decades before Nevada unexpectedly ratified it in 2017. Illinois did the same a year later.
When Democrats take control of the Virginia state legislature next month, it looks likely that the amendment will finally be approved by the 38th state. Before the ERA could become law, however, Congress would have to vote to void a deadline placed in the original bill, which expired in 1982.
Why there’s still debate
Proponents of the Equal Rights Amendment say it would strengthen the legal basis for combating a broad swath of inequities in American society, including pay discrepancies, violence against women and parental leave. While many of the reforms desired by campaigners in the 1970s have been accomplished through legislation in the intervening decades, supporters argue that a constitutional amendment carries more weight in the courts and is less vulnerable to repeal as political power changes hands in Washington.
Opponents of the ERA argue that it’s unnecessary because gender discrimination is already against the law in the U.S. They also warn that the legal interpretations of the amendment might result in radical change to policies beyond equality between men and women, such as transgender rights and abortion restrictions.
Virginia’s possible ratification of the ERA could be just the beginning of a long political and legal battle over its implementation. It’s unclear whether Senate Republicans would sign off on voiding the decades-old deadline to allow the amendment to move forward. If they don’t, the deadline would likely be challenged in court.
Five states voted to withdraw their ratifications in the years after they’d approved them.
The question of whether those repeals are constitutionally valid could itself be fodder for a lengthy court battle.
Existing laws have not proved to be enough to ensure equality
“I think there’s been a more widespread understanding among both women and men that we have not truly established equality in our culture … and the laws that we have enacted are not sufficient to protect against sex discrimination in all avenues.” — ERA legal advocate Linda Coberly to Time
Men are too often given discretion over application of equality laws
“Women in America are still not assured of being treated as full members of society, in or out of government. Even laws and policies that seek to bring the sexes toward equality are unevenly enforced and subject to being ignored, changed or cast aside depending on the whims of those (often male) who hold power.” — Editorial, Salt Lake Tribune
Trump’s tenure has shown how vulnerable discrimination laws are to subversion
“It's long past time to enshrine women's full equality in our nation's foundational documents. We have learned in the last three years that laws and court rulings — which brought us far closer to equality in the last 40 years than in the previous 200 — are far more precarious than any of us who helped bring them to pass had hoped. The ERA is as necessary now as it ever was.” — Carol Jenkins, NBC News
Opposition to the ERA is aimed at holding women back
“Unsurprisingly, the very same anti-women, anti-abortion, sexist dynamics that have blocked the ERA for decades continue to plague the amendment today.” — Clio Chang, Jezebel
An amendment carries much more power in court than simple legislation
“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.” —Annalisa Merelli, Quartz
Claims of unintended consequences are unfounded
“There’s no good argument against the Equal Rights Amendment. The very words make it clear that the ERA’s sole aim is to ensure equality among different genders. It actually reflects the same language as the 19th Amendment, which gave women the right to vote.” — Editorial, Tampa Bay Times
The ERA would have broad unintended consequences
“Sometimes, ignoring the very real biological differences between the sexes can put women and girls at risk, whether by eliminating female-only spaces such as domestic violence shelters, or by not allowing government programs to recognize the unique burdens of motherhood.” — Inez Stepman, The Hill
The process of ratifying the ERA should be started over
“Whether we honor the original deadline, 1979, or the extension to 1982, the ERA has been dead for decades. … To revive it, the two chambers of Congress must pass it again, and three-quarters of the states must ratify. That seems unlikely in our polarized times, but that is what a sound reading of our Constitution requires.” — Saikrishna Prakash, Los Angeles Times
The ERA would have a significant impact on abortion law
“One thing that is clear is that resurrecting a zombie Equal Rights Amendment would have disastrous consequences for the pro-life cause, and pro-life leaders don’t want to take any chances.” — John McCormack, National Review
The ERA is too simple to address the complicated causes of discrimination
“Count me as one of those women who — when told that a nearly century-old, one-line solution will solve the complex problems facing American women today — feels to raise an eyebrow and inquire, how might this be gamed, and who will get the short end of the stick when it is?” — Valerie Hudson, Deseret News
The ERA’s authors didn’t intend to address transgender issues
“The obvious point of the ERA was to rectify an illicit disparity between men and women by advancing the civil rights of women and to enshrine the principle of legal equality between the two sexes in our highest form of law. The ERA was not, however, intended to eliminate the binary construct of gender entirely, a purpose for which the current gender identity movement will no doubt use it.” — Thomas Wheatley, Washington Post
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