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To much fanfare, on January 15, Virginia became the 38th state to ratify the Equal Rights Amendment (“ERA”) to the Constitution, a proposed amendment guaranteeing equal rights to all citizens regardless of sex.
The ERA provides as follows: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Virginia’s ratification is the last ratification necessary to reach the three-fourths requirement to become a constitutional amendment. Since there are legal obstacles to the ratification’s validity (Virginia’s ratification came about 40 years after the deadline set by Congress), there is much uncertainty whether Congress will act to ensure that the ERA becomes law. Given that is has been over 40 years since the ERA was first proposed to Congress, people have questioned whether the ERA is still necessary. There is an easy answer to that question: the ERA’s passage is just as important now as it was forty years ago.
While women have made much progress over the last 40 years, women still systematically face discrimination and harassment on the basis of their gender in all facets of society. The ERA is not a panacea to eliminate unequal treatment, no more than the Civil Rights Act eliminated racism. However, its passage would send a message that our society values all genders and will not tolerate discrimination based on sex.
Its passage is also necessary to cement and improve upon existing law prohibiting sex discrimination. While existing constitutional precedent prohibits sex discrimination under the Equal Protection Clause of the 14th Amendment, the late Justice Antonin Scalia publicly claimed that, under his interpretation, the 14th Amendment did not protect against discrimination based on sex or gender. In other words, established constitutional precedent can be overturned. Moreover, the necessity of the ERA is evident in the face recent rollbacks of significant advances in women’s rights and policies that target vulnerable women in general. For example, among many other policies, the following federal and state policies have been pursued since 2016: significant and sustained attacks on reproductive rights, slashing of civil rights enforcement, child separation at the border, reversing LGBT protections, rewriting rules on housing discrimination, rewriting Title IX regulations regarding sexual assaults in college, and rolling back disparate impact regulations for anti-discrimination protection. Women need a constitutional amendment to stem the possibility of further retrenchment of women’s rights.
The legal, moral, and social urgency to protect women’s rights requires us to advocate for Congress to take steps to ensure the addition of the ERA to our Constitution. This is not just to protect our rights but the rights of our daughters and granddaughters.
-Article first published in LC News, February 2020
Elvira Cortez practices business and commercial litigation and employment defense at Dinsmore & Shohl, LLP and is the 2019-2020 president of Lawyers Club.