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Still Not Equal in 2020: The Ratification (Or Not) of the Equal Rights Amendment

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Brittany Keegan
February 29, 2020

On January 27, 2020, Virginia became the 38th state to ratify the Equal Rights Amendment (ERA), a constitutional amendment initially introduced in the 1920s that would guarantee equal legal rights for all Americans regardless of gender. Specifically, the ERA states that:

“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 1, Equal Rights Amendment

With the exception of having the right to vote, the Constitution does not currently explicitly guarantee that its protections are afforded to all; with the ERA, we would see a clearer standard in the judicial system for sex-based discrimination cases. Supporters believe that the ERA will be another step toward removing barriers faced by women, for example, the fact that women are typically paid less than men for equal work.

With Virginia providing the 38th ratification, the ERA has now met the requirement of being ratified by three-fourths of the states in order to be implemented. Many groups in Virginia fought for years for this ratification to occur, and were thrilled with the outcome. In a statement, Virginia House Majority Leader Charniele Herring said:

“The people of Virginia spoke last November, voting a record number of women into the House of Delegates and asking us to ratify the ERA… It is inspiring to see the amendment finally be considered, voted on and passed—long-awaited recognition that women deserve.”

Despite its ratification in Virginia and the subsequent celebrations of many on the left, the ERA is now hitting some roadblocks and there is uncertainty among legal experts about the amendment’s future.  

Many conservative groups are opposed to ratification. These opponents argue that the ERA and its support of women’s equality would lead to increased access to abortion; the removal of gender designations in public bathrooms, locker rooms, etc.; the loss of protection for women in divorce, e.g. alimony and custody rights; and women being drafted into the military. Conversely, those supporting the ERA argue that many of these concerns would be beneficial. They support increased access to abortion, as well as the provision of gender-neutral bathrooms and locker rooms. Additionally, some argue that more gender equality in military drafting (if it were ever to occur) and divorce proceedings are needed, and that men and women should be seen as equals in both instances.

Another issue is that five states that initially ratified the ERA (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) later voted to rescind their former approval. Though these votes took place decades ago (between 1973 and 1979), uncertainty remains if the revocation is valid, i.e., if states are actually able to revoke ratification once given. Three other states, Alabama, Louisiana, and South Dakota, filed a lawsuit in 2019 to opposed ratification.

There is also uncertainly as to if the ERA was ratified in time to actually be implemented. The initial deadline to obtain the three-fourths ratification was set for March 22, 1970, and was then later extended to June 30, 1982. Although interest in the ERA grew in the early 2010s following the rise of the #MeToo movement, and has now reach the three-fourths goal, the problem of the expired deadline remains.  On February 13, 2020, the U.S. House of Representatives voted 232 to 183 on a resolution to remove the 1982 deadline; however, this resolution seems less likely to pass the Republican-controlled Senate.

Clearly, there will be no easy solution.

What will happen to the ERA–and, more broadly, to the idea of women’s equality–moving forward? Surely, women will continue to fight for equality. With the current presidential administration and Republican-controlled Senate, however, the implementation of the ERA does not seem extremely likely. At least not yet. Even if the ERA does not end up being implemented, the actions of Virginia, other states and advocacy groups, along with the continued prominence of movements such as #MeToo, assure that women’s equality will continue to a primary concern of voters. As we continue to move through the Democratic primaries and on to the presidential election in November, the leading candidates will have to navigate the public’s polarized opinions on this issue.

Regardless of legal standards, opposition to women’s equality will always remain. Opponents will continue attempts to block legislation in support of equality, restrict women’s rights and maintain the unequal status quo. Nevertheless, women will continue the fight. Nevertheless, women will persist.

Author: Brittany Keegan, Ph.D., is the Director of Research and Outreach at the VCU Wilder School’s Center for Public Policy. Research interests include nonprofit organizations, gender-based violence prevention and intervention, and refugee policy. Twitter: @BritKeegan

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