After Nearly a Century, 2020 May Usher in the Equal Rights Amendment

The year 2020 could finally bring the ratification of the Equal Rights Amendment (ERA) — the constitutional amendment banning sex-based discrimination that was passed by Congress in 1972 but has been in limbo since 1982, the deadline by which 38 states were required to have ratified it.

If the amendment succeeds, it will be in large part because of Nevada State Sen. Pat Spearman, who championed the legislation that made her state the 36th to ratify the ERA in 2017, 45 years to the day after Congress originally passed it.

“I’m a member of the LGBTQ community, I’m African American, I’m a woman, so I mean, all of me has been discriminated against,” Spearman told Truthout. She said she felt compelled to bring the amendment forward after learning from advocates in her state that it still had a legal path to victory despite having languished for decades. “Once I learned that it still had a chance, there was no other choice,” Spearman said.

Nevada ratified the amendment two months into the administration of President Trump, on the heels of the women’s marches. The following year, Illinois followed suit. Democratic state lawmakers in Virginia, who won a majority in both legislative houses in November, have promised to bring the amendment to the floor for a vote in January, with the intention of finally making Virginia the 38th state to do so.

The renewed momentum behind the ERA comes from a growing realization under Trump of what it means to lack explicit constitutional protections against sex-based discrimination, according to Kate Kelly, a human rights attorney at Equality Now and host of an ERA podcast called Ordinary Equality.

“I think that women are realizing that nothing that we have is permanent,” Kelly said. “Nothing is too sacred to be rolled back, and things that we have taken for granted in the past are now up for grabs.”

For a relatively simple text, the Equal Rights Amendment has meant a wide range of things to different people throughout its long and varied history. First written by suffragist Alice Paul in 1923, Section 1 of the ERA currently states: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

But the concerns driving the ERA’s passage today look far different from those of the amendment’s original supporters, who drafted it just a few years after women won the right to vote. Today’s supporters say the ERA is needed to push back against sexual harassment in the workplace brought to light by the #MeToo movement and to defend the rights of LGBTQ people who were left out of the ERA’s original vision. The amendment could impact everything from access to employment and education to equal pay by ensuring that sex-based discrimination receives the highest level of scrutiny by courts. The Supreme Court, meanwhile, is likely to rule on three key cases that could undermine protections for LGBTQ employees before the ERA is added to the Constitution.

“Should we get a bad decision, or a decision that is not inclusive and protective of all gender minorities and marginalized genders, the Equal Rights Amendment will give an entirely new crack at the way those types of cases are decided in the future,” Kelly said. “While in the short term we can’t change who is on the Supreme Court, we can change the document that they are tasked with interpreting.”

Kelly said the ERA would also provide a platform for new legislation to protect women’s and LGBTQ rights. “It’s not just going to be used as a defense against taking our rights away, it’s going to be used as a tool to build an entirely robust infrastructure with new rights that we don’t even envision in our current legal framework,” Kelly said.

The history of the ERA debate has been a partisan one – but not always in the ways one might expect. Republicans opposed to government regulation supported the ERA in their platform beginning in 1940. Some Democrats, meanwhile, feared that the ERA would undermine existing legislation that protected women workers.

In her book, Divided We Stand: The Battle Over Women’s Rights and Family Values That Polarized American Politics, Marjorie J. Spruill notes that the amendment’s initial supporters included the racist former Alabama Gov. George Wallace, who embraced the ERA to bolster his presidential run in 1968. After the burgeoning feminist movement pushed Congress to approve the ERA in the early 1970s, Wallace renounced his support of what he then called an “insidious socialistic plan to destroy the home, make women slaves of the government, and their children wards of the state.”

Betty Friedan and other feminists who championed the ERA in the 1960s and 1970s overlooked an issue that is of major concern to many feminists today: how the ERA would impact LGBTQ people. In fact, “Friedan was very upset when a lot of the women within the movement — not only lesbians but their supporters among straight women — started pushing for defense of the rights of lesbians to be part of the agenda of the women’s movement,” Spruill told Truthout.

By contrast, conservatives opposed to the ERA, led by Phyllis Schlafly, fixated on the ERA’s potential to advance LGBTQ rights. Schlafly’s group, Stop ERA, “endlessly beat the drum with cries of its potential to legalize gay marriage (a common scare tactic at the time), and one of the best-known strategies deployed by anti-ERA activists was to stoke the irrational fear of unisex bathrooms,” as Kate Kelly wrote for The Advocate.

Today, as the place of women and LGBTQ people in society has evolved, “our understanding of how sexism impacts all of us has also evolved,” Heron Greenesmith, senior research analyst at Political Research Associates, told Truthout.

“The text is very plain; it just adds sex to the Constitution as an impermissible basis upon which to base decisions,” Greenesmith said. “And especially in the past 10 years, federal courts have made it clear that sex under federal law includes sexual orientation and gender identity.”

The current focus on LGBTQ rights is just one element that distinguishes today’s movement in support of the ERA from past efforts to ratify the amendment. Suffragists like Alice Paul espoused racist views, even forcing Black women to march in a separate contingent in the 1913 Women’s Suffrage Parade.

“The irony is that some of those who were asking for equality — it wasn’t about equality for my ancestors,” Spearman said. “But I also think that it’s poetic justice to say that people who were originally excluded, their children’s children, are now fighting for the equality that eluded them for 100 years.”

In today’s revived movement to support the ERA, women of color like Spearman have been at the forefront. “In every state where there is current legislation to ratify the Equal Rights Amendment, it is being put forward by women of color,” Kelly said.

While activists on the left overwhelmingly support the ERA, some caution that the amendment should be seen only as a first step, particularly when it comes to people facing multiple forms of discrimination.

“What it stands for is important, there’s no doubt about that,” said Yasmin Nair, an activist, academic, writer and co-founder of Against Equality. “But the larger problem is about the concept of equality and the fact that, whether we get it or not, we will still be left with the larger, systemic problems faced by people who are being broken down by the system of capitalism itself … For me the ERA is only one step in a long, sort of tortured history of American history around sex and gender. The question for me is: What do we do beyond it?”