Opinion | It’s time to ratify the Equal Rights Amendment

By Mackenzie Oster, Staff Columnist

As 2019 comes to an end, let us briefly reflect on the progress that’s been made over the past year. The female population has grown to outnumber that of men at colleges within the United States, and the House of Representatives has elected a record-breaking number of female candidates. Yet women are still not granted federal equality.

The Equal Rights Amendment, which passed Congress on a bipartisan agreement in 1972, requires the ratification of 38 states in order to reach the Constitution. Today, the proposal is reliant upon one more state for ratification — Virginia.

The Equal Rights Amendment was first introduced in Congress by Alice Paul in 1923 and is an amendment that “would guarantee that the rights affirmed by the U.S. Constitution are held equally by all citizens without regard to their sex,” according to the Alice Paul Institute, a nonprofit organization that seeks to achieve “gender equality for all.”

After so many years, the ratification of the ERA is long overdue. While the passage of the ERA would formally enforce that every American is protected against discriminative allegations based on gender under the Constitution, it would also mean so much more than that. The ERA’s passage would be a symbolic victory for any person who has faced sex discrimination.

The ratification of the ERA has been a long time coming. Thirty-five states ratified the amendment within the first five years. However, momentum plummeted after Phyllis Schlafly, a conservative political activist, led a potent anti-ERA movement in 1972 in which she warned women that the “heterosexual world order would collpase” if the amendment followed through. After Phyllis, progress toward ratification halted until Nevada and Illinois ratified the amendment in 2017.

Although the proposal failed in the Virginia Senate by a single vote in February, newly elected Democratic leaders, which now dominate Virginia’s House of Delegates and state Senate, have made promises to push for ratification of the ERA when legislation reconvenes in January 2020.

“There is an important reality that most Americans don’t understand,” Nicole Tortoriello, The Secular Society Women’s Rights advocacy counsel, of the ACLU, said. “According to a poll by the ERA Coalition/Women’s Equality Fund, 80% of Americans mistakenly believe that women and men are guaranteed equal rights in the U.S. Constitution. In reality, they are not. Even former Justice Antonin Scalia recognized that the U.S. Constitution does not prohibit sex discrimination.”

Within the United States, 42% of women reported that they have faced sex discrimination within their workplace, according to a study conducted by Pew Research Center. The study also revealed that women are roughly four times as likely as men to report that they have been treated as incompetent on the basis of their gender, and they are about three times as likely as men to say they have experienced repeated small slights at work because of their gender.

The reason that passing the ERA is so important for women’s rights is simple — any rights that are not protected under the federal Constitution can be taken away. Until then, gender inequality is merely a matter of legal interpretation.

While states such as Virginia have the power to put in place a state constitution, the line for classifying sex discrimination will continue to be blurred until there is a national standard set that will ensure a zero-tolerance policy in regard to gender inequality. The passage of the Equal Rights Amendment would draw this line by setting a national bar for sex discrimination to be judged upon under the federal Constitution.

Take the 2005 Supreme Court case Town of Castle Rock vs. Gonzales, for example. Jessica Gonzales sued the town’s police department for failing to enforce a restraining order against her estranged husband, who had abducted her three children and went on to murder them. The Court ruled that state law did not entitle Gonzales to any mandatory action and that the 14th Amendment did not guarantee protection against domestic violence. However, if the ERA was in place at this time, the outcome of this case could have been much different, eliminating the gender bias that is so present in the disheartening police response to this case.

The addition of the amendment would also help to ensure that reproductive freedom is achievable by eliminating pregnancy and motherhood discrimination, which is apparent when legal and appropriate medical care for women is inaccessible. The ERA would also mend the pay gap between genders within the workplace, resolving the inequality within pay, hiring and promotional opportunities against women within the workforce.

“In 2018, female full-time, year-round workers made only 82 cents for every dollar earned by men, a gender wage gap of 18 percent,” according to The Institute for Women’s Policy Research.

Furthermore, ratifying the ERA would help protect women against violence. This is especially important because as of right now, women who are sexually assaulted outside of places of employment and education have no real protection under the law.

“If we’re sexually assaulted, if it isn’t within the scope of Title VII as it understands an employment relation, or Title IX in education, we don’t have any equality rights,” Catharine MacKinnon, a law professor at the University of Michigan and executive in the field of sexual harassment and sex discrimination law, said. “The Equal Rights Amendment makes possible and makes constitutional laws we don’t have now.”

In fact, Virgina’s state constitution, which was amended in 1971, included the prohibitation of discrimination based on sex. However, the Virginia Supreme Court decided that it was unlawful for the state-level ERA to provide greater protection than the federal Constitution.

“Even when the text of the state constitution, the highest law in Virginia, would seem to provide protection from sex-based discrimination that appears more comprehensive than federal protections, those protections can be and have been eviscerated by the opinion of seven jurists,” Tortoriello wrote. “An amendment to the U.S. Constitution would provide the strongest protection available and a powerful tool to fight lingering sex-based discrimination.”

With the new year approaching quickly, it’s about time that equality becomes a priority within the legislation of our country. The United States will be one step closer to achieving the promise of “justice and liberty for all” once the Equal Rights Amendment reaches ratification.

Write to Mackenzie at [email protected]