By Logan King
Women’s rights activists scored a long-awaited victory on January 27th, 2020. Virginia became the 38th state to ratify the Equal Rights Amendment (ERA) after its Senate and House of Delegates voted to approve the change to the U.S. Constitution.
The ERA guarantees that “equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
The United States Constitution requires at least three-fourths of U.S. state legislatures to ratify an amendment before it can become law: 38 out of 50. On January 27th, Virginia became the 38th state. Despite being on uncertain legal footing, activists celebrated the passage of the ERA.
The ERA does not come without legal issues. Virginia’s ratification is largely a symbolic achievement, as the ERA will likely not be added to the Constitution. The amendment did not meet the 38-state threshold before its original deadline for ratification expired in 1982. Since then, five states (Idaho, South Dakota, Nebraska, Kentucky, and Tennessee) have attempted to revoke their ratifications. The Justice Department went as far to issue an opinion in January stating that the addition of the ERA was no longer pending before the United States. The odds are stacked against advocates wishing to finally enshrine equality of all sexes in the U.S. Constitution.
Still, advocates of the ERA remain optimistic. Article V of the U.S. Constitution, which governs how states may propose and ratify constitutional amendments, is silent on whether or not states can revoke a ratification of constitutional amendments.
In response to the issue of the deadline being passed, the U.S. House of Representatives voted to remove the ratification deadline in a 232-183 vote held in February. The resolution now stands pending before the Senate Judiciary Committee.
One of the chief arguments against the ratification of the ERA is that a constitutional amendment is not necessary in order to guarantee equality of the sexes, and critics of the ERA have not received the prospect of ratification warmly. For example, in December 2019, Alabama, Louisiana, and South Dakota sued to block the archivist of the U.S. Constitution from adding the ERA to the Constitution.
Proponents of the ERA argue that the amendment would afford cases involving potential discrimincation based on biological sex “strict scrutiny,” which invokes intense review before the court system. Right now, courts exercise “heightened scrutiny,” a less strict standard, in cases that concern potential discrimination on account of biological sex thanks to United States v. Virginia. This means that “exceedingly persuasive” differential treatment on the basis of sex is required, an intentionally vague term which makes prohibition of sex discrimination more difficult than prohibition of say, racial discrimination. The ERA would supposedly clarify the law for the lower courts and influence legal reasoning. Many argue that it is more important now than ever that equality of the sexes is enshrined within the constitution, and for good reason.
For instance, advocates argue that passing the ERA would make it more difficult to roll back landmark court cases like Roe v. Wade. While equal protection is already theoretically guaranteed under the 14th amendment, legislators and courts have the ability to circumvent accusations of gender discrimination due to the vague “exceedingly persuasive” standsard needed to prove discrimination on account of sex set forth by United States v. Virginia. Topics such as abortion continue to stir controversy as conservatives prepare to challenge decisions such as Roe v. Wade with laws such as Georgia’s HB481, also known as the heartbeat bill.
The ratification of the ERA is not just a symbolic nod to fourth wave feminism or women’s activism; it is a practical, much-needed affirmation of the principles that the United States was founded upon. The 14th amendment may address some of the issues posed by sexual discrimination, but it does not enshrine and ensure protection against such discrimination in the same way that the ERA would.
Furthermore, the language of the amendment paves the road beyond protections for women alone. Transgender & non-binary individuals stand to gain equal footing on account of their sex as well. Members of the LGBTQ+ community may be able to advocate for an amendment establishing equality of all sexual orientations, rather than having to resort to challenges such as Title VII claims. There are no inherent disadvantages to enshrining protection of the sexes within the constitution; in fact, the United States only stands to benefit from doing so.Regardless of its viability, the ERA shines light upon a conversation that will not be dying out anytime soon. Nevada made history when it became the 36th state to ratify the ERA in 2017; in doing so, it sent the message that sexual discrimination will not be tolerated in any form. Illinois followed suit in 2018 while Virginia completed the charge in 2020. Whether or not this current iteration of the ERA is legally viable or not does not capture the gravity of its “ratification.” Our ideas of sex and gender are changing, and more and more people are realizing that sexual discrimination has no place in the United States. The ERA has already prevailed by highlighting the struggle of a new generation of feminists.