Today marks 48 years since the first Women’s Strike for Equality in the U.S. and 98 years since the passage of the 19th Amendment, guaranteeing women the right to vote.
While a number of policies have been enacted to put an end to sexual discrimination, sexual harassment and the wage gap, those problems are still pervasive today, and continue to highlight the need for something stronger.
A fight to pass the Equal Rights Amendment (ERA) has been brewing since it was first introduced in 1923. It simmered for awhile until it was finally passed by Congress in 1972 followed by tepid movement until recently where it is now experiencing a resurgence.
What is the ERA?
The text of the ERA is quite simple, it states:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
As many as 80% of Americans think that women already have guaranteed rights under the Constitution. That’s probably thanks in part to the 14th Amendment, which specifically states that no privileges or immunities will be denied to citizens but explicitly includes the word male; and the 19th Amendment which only protects the voting privileges of women.
Having equal protection for sex in the Constitution is paramount because when U.S. courts determine if a law is discriminatory, they do so based on a Constitutional scrutiny test. The courts apply a strict scrutiny test to claims of racial discrimination because of its status as a fundamental Constitutional right. It applies a lower standard, or intermediate scrutiny, to claims of sex discrimination. Once the ERA becomes part of the Constitution, sex discrimination would face the same strict scrutiny test as other fundamental Constitutional rights.
A Little (Her)story
In 1970 women and their allies across the U.S. took to the streets to demand women’s equality be enshrined in the constitution. The Equal Rights Amendment was introduced to Congress just a few month prior and by 1972 it had passed quite handily in both the U.S. House and Senate.
In order to become an amendment, the ERA needed to be ratified by 38 of the 50 states. The original amendment text did not include a deadline, but through Congressional instruction, it had to be ratified by 1979.
The ERA lost steam thanks in large part to conservative activist Phyllis Schlafly, who spewed ridiculous rhetoric on the regular and was literally known to lobby members of Congress with apple pie. She argued that the ERA would mean that men would no longer be able to support their wives, women would be forced to serve in combat, we’d have unisex bathrooms (the horror!) and homosexual marriages (double horror!).
She would start her speeches by saying, “I would like to thank my husband for allowing me to be here today” just to to get under the skin of progressive feminists. It undoubtedly worked. And her efforts paid off.
In the first year, 22 states ratified the ERA but success stalled, with only a few to none ratifying in the subsequent years. Despite a timeline extension for ratification by 1982, Indiana would be the 35th state to ratify, and last to do so for over three decades.
Pussy Grabs Back
It’s amazing how movements ebb and flow. For decades the ERA was thought to be dead. But 2016 happened. Remember Phyllis Schlafly? She died in 2016, but not before writing a book called The Conservative Case for Trump. Of course they were mutual fans.
But Schlafly’s book and Trump’s win weren’t all that happened in 2016. The pendulum swung hard. The Women’s March woke us up from DC to Sydney and hundreds of cities in between. So it should be no surprise then, that all of marching and phone calling and you know, voting is making an impact.
In 2017 Nevada ratified the ERA, and in May of 2018 Illinois followed suit. Which means we only need one more state to ratify. Virginia is close, as are several others. The National Organization for Women (NOW) points out that women make up 40% of Nevada’s General Assembly, which is believed to have been crucial in getting ratification over the line there. So no matter what, let’s work to get more women elected to higher office, and we will see greater equality everywhere.
Laws, like sex and gender, are not always equal. Legislation can and has been passed. But those laws often go unenforced and are much more likely to be ignored when it’s convenient, and they can be overturned by the Supreme Court or Congress.
For better or worse, Constitutional amendments are tough to change once they’re in place. If the ERA became Constitutional, things like a woman’s right to choose and marriage equality wouldn’t be threatened everytime a right wing judge gets a lifetime appointment to the Supreme Court or conservatives gain control of Congress or the Presidency.
So, Now What?
We’ve knitted our pussy hats, we’ve rocked our “Grab ‘em by the Patriarchy” t-shirts, we’ve rallied and protested and we know in our bones that a violation against women’s rights anywhere is an assault on human rights everywhere. So we’re not giving up. That’s why today is such an important reminder that solidarity with our sisters and brothers demanding equality across the globe is still so important to each and every one of us.
Even if the average American doesn’t know that women’s equality it yet to be Constitutionally protected, 94% agree that it should be. That’s great news. Because even if the ERA waters have been muddied, we’re still only one state away from ratification, which is just another reason why the U.S. midterm elections in November are so important.
We definitely can’t count on the Republican Party to embrace the ERA with open arms (it removed its support in 1980 and hasn’t looked back) but a Democratic majority in the House of Representatives can definitely help facilitate a smoother implementation if and when the 38th state does ratify the ERA.
If you want to help make a difference, there are a number of ways you can get active. The National Organization for Women (NOW) has tirelessly worked on the ERA for decades, and they continue to lead the charge. You can access target states here, and volunteer to make phone calls, or even go door-to-door.
A successful Equal Rights Amendment will be felt for years to come and around the world. My vision for the future does not include my granddaughter holding one of those placards that reads, “I can’t believe I’m still protesting this shit.” Let’s get our rights, right now.
More great resources about the ERA can be found here:
Unladylike and follow along with #IUDmyrights