The full text of the Equal Rights Amendment is 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. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. This amendment shall take effect two years after the date of ratification.
In 1923, Alice Paul introduced the ERA to Congress. The amendment failed in the House of Representatives and was reintroduced every year until it finally passed in 1972. It was sent to the states to be ratified, but only 35 of the 38 states necessary had ratified it by the 1982 deadline Congress imposed on the amendment. Due to this, many believed the fight was over; in fact, five states rescinded their ratification, though there is no legal or constitutional precedent to rescinding ratification on a constitutional amendment.
On Jan. 15, 2020, Virginia became the 38th state to ratify the amendment out of the 38 needed. On Thursday, the House of Representatives voted 232-183 to remove the 1982 deadline –– the first step in an obstacle course of legal barriers to formally ratifying the ERA. To become enshrined in the Constitution, the Senate still needs to vote to remove the deadline, and the judicial branch will need to settle an array of lawsuits filed by various states, both in support of and in opposition to the amendment.
The Senate should follow in the House’s footsteps and vote to remove the deadline, allowing the ERA to become the 28th Amendment to the Constitution of the United States.
The ERA is still an extremely important and relevant amendment. Gender-specific issues such as the wage gap, paid parental leave and other workplace discrimination occurrences are still very real. On the job, 42% of women have faced discrimination because of their gender and 25% of women have earned less than a man doing the same job.
Furthermore, the Word Economic Forum ranks the U.S. as 26th in the world in terms of gender equality in economic participation and opportunity and 36th in terms of political empowerment for women. If our government enshrines the ERA in the Constitution, we would be more comparable to countries that rank in the top 10 that have explicitly addressed gender equality in their legal system.
Beyond bettering the state of women’s rights in America, the ERA could also provide support for laws that protect transgender individuals. For example, it could provide legal precedent for laws allowing transgender women to transfer to female prisons instead of staying in male ones, which would be much safer for them. Over 33% of all transgender prisoners in male prisons have been sexually assaulted, compared to 4% of cisgender prisoners.
The ERA’s explicit protection against discrimination based on gender could be extremely beneficial to the transgender community, especially considering all the rollbacks in legal protections the Trump administration has instigated. There are currently very few federal court cases that have specifically protected transgender rights, but I believe once the ERA is added to the Constitution, there will be a much stronger precedent for the courts to rule in favor of laws that protect transgender rights.
A common argument against the ERA is that women don’t need the ERA, because they have the 14th Amendment, which prevents against discriminatory laws. However, the 14th Amendment does not fulfill the same legal standards that the ERA would.
While assessing laws that address gender inequality under the 14th Amendment, courts only view these laws with an intermediate level of scrutiny. In other words, to overturn a law, courts must find that the government has an important interest and the law must be substantially related to that interest.
This level of scrutiny is almost entirely reserved for laws relating to gender. If the ERA is added to the Constitution, gender will be assessed with strict scrutiny, meaning courts must find that the government has a compelling interest and the law must be narrowly tailored to the interest. This scrutiny is currently used for inspecting laws infringing on marriage rights, political speech rights or laws based on race. However, it should also apply to laws relating to gender because it will provide a more cohesive legal basis for overturning laws and policies that discriminate on the basis of gender, whether they are applied to cisgender or transgender women.
In the 97 years since the Equal Rights Amendment was first proposed, women have made large strides in legal and social equality. But there is still a long way to come in terms of gender equality and equity. The legal protections that the amendment could offer both women and the transgender community would considerably improve the quality of life for many people in the United States.
Sydney Miller is a sophomore psychology major. Reach them at firstname.lastname@example.org.