The Debate for Women’s Rights: Reviving the Equal Rights Amendment
On March 17, 2021, the U.S. House of Representatives voted along party lines to pass a resolution to revive the Equal Rights Amendment and to create a path toward its ratification to the U.S. Constitution. While the resolution has yet to be approved by the Senate, the House has pushed for it on the grounds of equal protection under the law. The resolution, following approval by the Senate, would remove the arbitrary seven-year deadline for constitutional ratification of the Equal Rights Amendment.
The primary purpose of the Equal Rights Amendment is simple: as Section 1 of the ERA passed in 1972 states, “Equality of rights under the law shall not be abridged by the United States or by any State on account of sex.” A slight word difference can be found in House Joint Resolution 28, introduced on February 26, 2021, which specifically mentions women. Section 1 of the current proposal states, “Women shall have equal rights in the United States and every place subject to its jurisdiction.” This phrasing of Section 1 was adopted from the original submission of the 1923 Lucretia Mott Amendment, which stated, “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.”
On March 22, 1972, when Congress passed the original version of the ERA, the resolution included a seven-year deadline for three-fourths of state legislatures to ratify the amendment. In 1978, the original deadline for ratification was extended to 1982 through a joint resolution passed by Congress and signed by President Carter. However, from 1979 to 1982, no additional state legislatures ratified the amendment; thus, the Equal Rights Amendment has been held in abeyance for the past three decades.
Debate over the necessity of the ERA began as early as the 1920s, when suffragist Alice Paul wrote the original version of the amendment. The amendment has faced long-standing criticism from conservatives, many of whom believe that the ERA would disrupt the traditional gender norms of American society. Stop-ERA Campaigners, led by Phyllis Schlafly, feared that the ratification of the amendment would lead to fundamental changes in social relations, including, for example, the elimination of single-sex restrooms and the all-male military draft.
Supporters of the ERA, on the other hand, maintain that the ratification of outright equality based on sex is long overdue. Notwithstanding the Fourteenth Amendment’s Equal Protection Clause, the U.S. Constitution makes no explicit affirmation of equality of rights under the law based on gender. In 2010, the late Justice Antonin Scalia commented, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”
Other jurists have recognized this problem, and they believe that the solution is clear: the late Justice Ruth Bader Ginsburg expressed support for the ratification of the Equal Rights Amendment, commenting, “I would like my granddaughters, when they pick up the Constitution, to see that notion—that women and men are persons of equal stature—I’d like them to see that it’s a basic principle of our society.”
In the era (no pun intended) of fourth-wave feminism, public demand for the ratification of the ERA has grown. Women across the country have taken a wide variety of stands against gender discrimination in a numerous settings from employment to education, such as by launching the Women’s March on Washington and the #MeToo Movement. During the COVID-19 pandemic, sex-based inequities have again come to light: American women were far more likely than men to lose work and women’s unpaid care work has increased significantly with stay-at-home orders. While legal equality is not the same as social equality, the recognition of gender equality in the Constitution would serve as fundamental support for women across American society.