EQUAL RIGHTS AMENDMENT: 100 years of inaction

I was sitting in the nation’s capital when I first learned about the Equal Rights Amendment. Well, not literally I’m-just-a-bill style sitting in the capitol building, but I was in class in Washington DC. It didn’t sit right that there, at the heart of the country — next to all those brilliant and dangerous politicians — the Equal Rights Amendment was never ratified. Never pushed through to become law, immortalized in the constitution as the 28th Amendment.

The Equal Rights Amendment is an amendment to the US Constitution that was introduced by the National Women’s Party in 1923 and passed by Congress almost 50 years later in March 1972. The amendment in its current form declares that “equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.” Despite being passed by Congress, any amendment to the constitution must be ratified by a ⅔ majority of individual states, and that is where the amendment was halted in its tracks. After 30 states swiftly ratified the amendment in its first year on the table, progress stalled during a conservative backlash that questioned whether women required unique, tender treatment under the law.

But wait? Didn’t we already have equal constitutional rights? Almost. If only Renée Elise Goldsberry could really sing it into reality as Angelica Schyler in Hamilton, belting out her criticism of the founding fathers by saying “and when I meet Thomas Jefferson, I’m a compel him to include women in the sequel!” The closest constitutional reference to equality of the sexes is the 14th Amendment, which declares “equal treatment under the law” for emancipated slaves, but has been interpreted by legal scholars and politicians as excluding women. Conservative Supreme Court Justice Antonin Scalia, for example, acts on the understanding that modern application of the 14th Amendment should exclusively reflect the original founding fathers’ intentions.

My generation has witnessed leaps and bounds in feminist legislation. I can vote, I can have my own credit cards, I can report sexual harassment (but not depend on punitive action for a perpetrator), I can aspire to be elected to political office, I can marry whomever I want, I can reap the benefits of affirmative action (at a disproportionate advantage compared to my Black and Brown peers), I can take maternity leave, with the right insurance I can acquire birth control, Plan B, or schedule an abortion. But upon further research, all of the resolutions that I thought protected our right to exist to our full capacity as women are more transitory than I had previously assumed.

Sure, anti-discrimination laws already exist. I watched On the Basis of Sex with a white-knuckle grip on the arm of the couch and mourned Ruth Bader Ginsberg just the same as any other woman steeped in emancipatory aspiration. Legal support for women’s rights does not constitute the same thing as an amendment to the constitution that secures women’s rights once and for all. Take the Equal Pay Act (1963), which “protects against wage discrimination based on sex,” and benefits both men and women. Congress passed the Equal Pay Act under John F. Kennedy in 1963 but follow-up legislation still endures argument in the US Senate today.

As recently as April 14, 2021, the House of Representatives passed the Paycheck Fairness Act (H.R. 7) which seeks to reduce the wage gap that was exacerbated by the COVID-19 pandemic.

And there are others. Title VII and Title IX of the Civil Rights Act (1964), the Pregnancy Discrimination Act (1978), and even Supreme Court decisions based on the 14th Amendment’s equal protection clause stand up for women’s rights. But according to scholars of the Equal Rights Amendment, legal decisions, even under precedent, can be overwritten. “Congress has the power to make laws that replace existing laws — and to do so by a simple majority,” writes the Alice Paul Institute, an educational center advocating for gender equality in the name of the Equal Rights Amendment’s author. I think of Alice Paul, in her yellow and purple ribbon, envisioning a future 100 years ago that is still yet to pass.

Why? What’s the holdup? I ask myself, racking my brain for reasons why a conservative and traditional Supreme Court could be enabled to make decisions that remove my bodily autonomy, or impinge on my conception of what a woman’s dream job could be, or shame me out of seeking the pleasures that we all deserve. It seems like if Congress has been able to make legal decisions about discrimination on the basis of sex, it should be a no-brainer to sign this into the Constitution. But because of the division along party lines, it’s not that simple.

Some argue that the amendment is out of date because constitutional amendments are designed to be ratified on a set timeline. In March, the US House of Representatives passed a joint resolution that would remove the hindering deadline for the Equal Rights Amendment, but the resolution is expected to falter in the Senate because of the nearly 50-50 party split. All of this over a deadline? Yes.

According to the Cornell Law School’s Legal Information Institute, deadlines for constitutional amendments were imposed so that amendments would “reflect the will of the people in all sections at relatively the same period, which of course ratification scattered through a long series of years would not do.” This is designed to ensure that an amendment accurately represents the most up-to-date needs of constituents. It makes some sense until I consider: isn’t equal rights a timeless need?

The fact that semantics in the life cycle of resolutions and amendments stands between us and equal rights is disappointing, to say the least. Don’t get me wrong, I am in favor of stringent regulation on how popular ideas move through legislation and into law because these bureaucratic hoops are designed to protect the people from abuse of power. I thought that removing the ratification deadline on this singular would be a unanimous decision. I thought that ratifying the Equal Rights Amendment within its deadline would have been a unanimous decision.

What can we do to pass the Equal Rights Amendment and ensure our rights? We do what they think we women do best. We make some noise, we make a fuss. The Alice Paul Institute provides resources to circulate on our social media, at our fitness clubs, during our book groups, and between sips of conspiratorial wine at our gatherings. You can send letters to your senators through this form designed by the youth action organization, Generation Ratify.

You can also sign their letter to the Department of Justice, asking to provide relief to the amendment ratification deadline. And once you’ve done each of these steps, talk to the men in your life to do the same. The Equal Rights Amendment isn’t just a women’s issue. Scholars at George Mason University remind us that it would also ensure family law rights for men, insurance premium equality for men, and relieve the gendered burden of the military draft for men.

I feel powerless when confronted with the barriers that overwhelmingly white, male politicians have placed between me and my rights enshrined in the US Constitution. What do they have that says I can’t have the same? At the end of the day, it’s about power. 

 First Oscar Wilde, and then Janelle Monae said:

“Everything in the world is about sex — except sex. Sex is about power.” 

History shows that men will cling to the power they have accrued on the basis of their sex. Current events reinforce it. I am determined not to be a part of a future that proves men will maintain the power they refuse to share.