Executive summary

Gender equality is an issue that still persists in America's patriarchal society. Which is reflected in the persistent gender wage gap, the fact that 91% of sexual assault survivors are women, and the restricted access to abortion. These challenges are highly systematic and deeply rooted in American history, and one way many of these issues could be combated in the long run is to ratify the Equal Rights Amendment (ERA). Despite 38 states having ratified the ERA in their state constitutions, it is not yet federally implemented. Without the ERA, protections against sex and gender based discrimination lack constitution backing and remain vulnerable to judicial weakening or misinterpretation. Ratifying the ERA is a crucial step to secure true equality in the United States. 

Overview

The Equal Rights Amendment (ERA) was written by the suffragists Alice Paul and Crystal Eastman in 1923 and passed in 1972 with widespread bipartisan support, which included 78% of the House Republicans and 84% of Senate Republicans. And as understood by Article 5 of the Constitution, to amend a constitution, at least two-thirds of both the United States House of Representatives and the United States Senate must pass a resolution that contains the text of the proposed amendment. And at least three fourths of the states must ratify the amendment. Most amendments do not even have time limits, for example, the 27th amendment was ratified in 1992 despite it having been proposed 202 years after James Madison had initially proposed it.  Because of these limitations, the U.S. Constitution still lacks an explicit guarantee of equal rights based on sex which leaves protections against gender discrimination vulnerable to shifting judicial interpretations and political climates. The Equal Rights Amendment would cover a myriad of issues such as reproductive rights and healthcare access, economic disparities and gender wage gaps, sexual harassment and Title IX, etc. 

Pointed Summary

• The Equal Rights Amendment has yet to be ratified into the constitution as the 28th amendment due to the arbitrary 7-year deadline Congress had placed on the ratification process.
• This deadline was extended to 1982, but only 35 states ratified the amendment before the arbitrary deadline.
• However, in 2020 Virginia was the 38th state needed to certify the ERA as the 28th amendment to the U.S. constitution.
• The Equal Rights Amendment is still necessary as it has the potential to create a more equitable society for marginalized communities such as people of color, women and marginalized genders, LGBTQIA+ individuals, and people with disabilities.
• Without the ERA many laws and rights such as Title IX and Violence Against Women Act remain highly vulnerable for attack as the constitution cannot back them up.

Relevance

With the overturning of Roe v. Wade access to abortion has become an extremely hot topic in America. Currently 22 states have banned abortion or restrict procedures earlier in pregnancy than the standard set by Roe v. Wade, which has governed reproductive rights for nearly half a century until the Supreme Court decision in 2022 to overturn it. And despite the Supreme Court's decision to overturn Roe v. Wade, the American public stands in support for legal abortion. According to the Pew Research Center, currently, 63% of Americans say abortion should be legal in all or most cases, while 36% say it should be illegal in all or most cases. And according to Columbia Law School: Center for Gender and Sexuality Law “The Equal Rights Amendment (“ERA”), which would add an explicit guarantee of sex equality to the United States Constitution, would protect the right to abortion and the full range of reproductive healthcare and is more critically needed now than ever before.” This is because such restrictions on abortions single out abortions against other medical procedures that have similar risks, which imposes “an unnecessary, irrational, and unjustifiable undue burden on women.” 

In recent years there has also been a resurgence of women’s activism. From the Women’s March on Washington and the #MeToo Movement, there has been a renewed focus on gender equality and its relevance in the U.S. In 2017, the ERA began to gain more traction and attention when the state of Nevada became the first state to ratify the ERA since 1977. And very recently, in 2021, there was a policy proposed to remove the deadline for the ratification of the Equal Rights Amendment, which I will touch on throughout the policy brief.

Also, having such an amendment in place can also shift public and social norms. Despite federal laws that prohibit discrimination based on sex, there are many gender disparities that women and marginalized genders face in the U.S. to this day. In the U.S. women on average earn 16% less than men and are likely to be concentrated in low-wage jobs, be responsible for caregiving, and experience sexual harassment and assault. While legislation plays a huge part in these disparities, the fact that many women still have a difficult time breaking into careers in STEM (in 2020 women only made up 35% of the people employed in STEM), leadership positions, and higher paying careers, really reflects the systematic harms of the patriarchy, and is still relevant to this day. 

Current Stances

According to a poll done in 2022 85% of Americans across the party line believe that the ERA should be ratified. However, despite the majority of the American population being in favor of the implementation of the ERA, there are many groups who are against such decisions. Due to societal conditioning women and marginalized genders face struggles different from cisgender men. Some argue that implementing the ERA could strip women of these nuanced approaches and considerations in court. Some claim that the implementation of the ERA would create “strict scrutiny” amounting to the constitutional rule of “sex-blindness” and therefore disadvantage women by not acknowledging the struggles that come with being a woman. However, it is important to understand that strict scrutiny does not mean ignoring real inequalities, instead it ensures that any sex-based distinctions must serve a compelling government interest and should be narrowly tailored. This standard can still support women and the historical disadvantages they have faced.  

Tried Policy

 The Equal Rights Amendment in itself was a tried policy that was not able to be ratified. However, there are many other federal protections that include protection for marginalised genders. Title VII, or the Civil Rights Act of 1964 prohibits employment discrimination based on sex, including pregnancy, sexual orientation, and gender identity. The Equal Pay Act mandates equal pay for men and women performing substantially equal work in the same workplace. 

However, these laws can fail to hold up and can be weakened without backing from the Constitution. It is easy for some to believe that the Equal Rights Amendment is unnecessary as there are in fact federal laws in place to regulate gender disparities, it is still the reality that many marginalized genders face, as I had mentioned in the relevance section. These Acts can fail to provide proper protection and equality in a patriarchal society such as the U.S. and that is why having an amendment that explicitly states the importance and upholding of equal rights based on sex and gender identity is extremely important. 

Policy Problem

A. Stakeholders

The Equal Rights Amendment is something that affects everyone that would provide a fundamental legal remedy against sex discrimination against men and women and the LGBTQIA+ community. “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” In the constitution the words “sex” and “sex equality” do not appear in the text at all. So, amending the Constitution to include specific sex equality protections would clarify and strengthen existing constitutional prohibitions against sex discrimination, but would also include protections against sexual orientation and gender identity discrimination. The Supreme Court found in Bostock v. Clayton County (2020) that federal law prohibiting sex discrimination in employment necessarily includes sexual orientation and gender identity discrimination. 140 S. Ct. 1731 (2020). Thus, the ERA should also be read to prohibit discrimination based on sexual orientation and gender identity. 

B. Risks of Indifference

Some risks of indifference include vulnerability to legal challenges. Without the Equal Rights Amendment protections against gender discrimination are not constitutionally guaranteed. Ratifying the amendment would potentially provide additional support for new and existing protections against sex based discrimination in areas such as where gender based violence is highly prevalent, the workplace, and access to reproductive healthcare. Indifference to the ERA also exacerbates economic disparities. Without the constitutional protection against gender based discrimination many women and marginalized gender identities remain vulnerable to wage inequality, unequal pay, and lack of economic opportunities. Ratification should strengthen laws that improve wage transparency and support the Equal Pay Act. 

And, without the ERA judicial precedent and legal interpretation is left to be interpreted by the 14th amendment. This amendment was primarily intended to protect the rights of formerly enslaved people, not women or marginalized genders, and applying this amendment to gender issues can lead to a narrow interpretation of court cases and laws that may not adequately address complex gender inequalities. The ERA would also be able to address the complex intersectional discrimination of marginalized communities such as LGBTQIA+ people, people of color, and people with disabilities. It would create a robust support system for these marginalized communities and tackle anti-discrimination laws against the marginalized. And without the ERA, existing legislation such as Title IX and the Violence Against Women Act lack constitutional support and make them more vulnerable to legal attacks. And again, this is intersectional issue that disproportionately impacts black women as they face higher rates of sexual harassment and violence, over 18% of African American women have been sexually assaulted in their lifetime, and unfortunately this is percentage only accounts for the number of women who report their abuse. Establishing the ERA would also make it easier to pass stronger protections and expand rights for all marginalized groups. Remaining indifferent to the positive impact that the ERA could have for so many marginalized communities will only allow greater attacks against basic human rights, similar to the impact of the overturning of Roe v. Wade. 

C. Nonpartisan Reasoning

Ratifying the Equal Rights Amendment would improve the United States’ global credibility with respect to gender discrimination. It would also constitutionally guarantee equal rights regardless of sex, gender. It would also protect existing rights from further political attack and provide greater protection and opportunities for marginalized genders.

Conclusions and Recommendations

Congressional action can be taken to remove the deadline as 38 states have already ratified the ERA, requirements beyond the deadline have been met. In 2021, H.J. Res. 17 was introduced to remove the deadline for the ratification of the Equal Rights Amendment. While it was able to pass in the House, it failed to pass through the Senate. Despite the death of this bill the composition of Congress is ever changing, hope is not lost, and with greater advocacy and movement for the ratification of the ERA it could also pass through the Senate. To accomplish this, mobilizing grassroots movements and political awareness is key. Another possibility is introducing a completely new Equal Rights Amendment, which would reset the ratification process.

There are also several improvements that could be made for the ERA such as using inclusive language to emphasize the protections for gender identity and sexual orientation, which would make the amendment more inclusive of LGBTQIA+ individuals. Reproductive freedom could also be a right mentioned explicitly on the ERA. We can all continue to advocate for the ratification of the ERA by reaching out to legislators, working with grassroots organizations, and mobilizing people in your community.

‍

Acknowledgment

The Institute for Youth in Policy wishes to acknowledge Paul Kramer, Carlos Bindert, Gwen Singer, and other contributors for developing and maintaining the Programming Department within the Institute.

References (Should Also Be Hyperlinked)

1. BLACK WOMEN & SEXUALVIOLENCE. now.org/wp-content/uploads/2018/02/Black-Women-and-Sexual-Violence-6.pdf.
2. Congress.gov. “U.S. Constitution - Fourteenth Amendment | Resources | Constitution Annotated | Congress.gov | Library of Congress.” Congress.gov, 2020, constitution.congress.gov/constitution/amendment-14/.
3. EQUAL RIGHTS AMENDMENT FREQUENTLY ASKED QUESTIONS. 2018, www.congress.gov/116/meeting/house/109330/documents/HHRG-116-JU10-20190430-SD013.pdf.
4. “ERA and Abortion Talking Points | the Center for Gender and Sexuality Law.” Gender-Sexuality.law.columbia.edu, 3 May 2022, gender-sexuality.law.columbia.edu/content/era-and-abortion-talking-points.
5. “Fifty Years Later, Voters Support Passing the Equal Rights Amendment.” Data for Progress, www.dataforprogress.org/blog/2022/6/2/fifty-years-later-voters-support-passing-the-equal-rights-amendment.
6. Francis, Roberta W. “Equal Rights Amendment.” Equal Rights Amendment, 2014, www.equalrightsamendment.org/faq.
7. Haan, Kathy. “52 Gender Pay Gap Statistics in 2023 – Forbes Advisor.” Www.forbes.com, Forbes, 27 Feb. 2023, www.forbes.com/advisor/business/gender-pay-gap-statistics/#:~:text=What%20is%20the%20wage%20gap.
8. H.J.Res.17 - Removing the Deadline for the Ratification of the Equal Rights Amendment. www.congress.gov/bill/117th-congress/house-joint-resolution/17. 
9. National Constitution Center. “The Constitution.” National Constitution Center, 2023, constitutioncenter.org/the-constitution.
10. National Network to End Domestic Violence. “Violence against Women Act.” National Network to End Domestic Violence, 2017, nnedv.org/content/violence-against-women-act/.
11. 159, and 143. “Is the GOP Warming up to the Equal Rights Amendment? | Brennan Center for Justice.” Www.brennancenter.org, www.brennancenter.org/our-work/analysis-opinion/gop-warming-equal-rights-amendment.

‍