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ERA Explainer

What is the Equal Rights Amendment (ERA)?

The ERA was written by suffragist Alice Paul in 1923 following the ratification of the 19th Amendment. It was passed by Congress in 1972, but unlike the 19th Amendment, the ERA fell 3 states short of ratification and was never adopted.

The ERA is a very simple, straightforward amendment putting protection for women directly into the United States Constitution. The entire text of the proposed amendment is:

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.

It’s that simple.

Aren’t women already protected in the Constitution?

The short answer is: no. The original drafters of the U.S. Constitution were all white, landholding (and many slave-holding) men. Women were never part of “the people” they envisioned in the Constitution.

Many years later the Supreme Court interpreted the Equal Protection Clause of the 14th Amendment to protect women to an extent, but a special category was created for gender that offers far less protection than other protected categories like race, religion or national origin.

Why do we need the ERA?

The U.S. Constitution reflects our most sacred values and ratifying the ERA would help gender equality become a bedrock value of American society.

The 14th Amendment’s equal protection clause is not enough. It does not fully protect women, and we need a higher judicial standard. Also, piecemeal laws like Title IX and the Equal Pay Act are not permanent protections for women and can be rescinded or replaced at any time. Plus, without women being fully protected in the Constitution, it’s easier to pass and keep sexist laws on the books.

The U.S. also needs to walk-the-walk when it comes to international human rights standards and protections for women. Our Constitution is weaker than many other countries because it does not specifically address gender. Passing the ERA would improve the standing of the United States globally.

Why is the ERA coming up again now?

When it passed, the 1972 legislation included a 7-year deadline. Upon reaching the original deadline without achieving the requisite number of state ratifications, pro-ERA advocates convinced Congress to extend the deadline until 1982. However, anti-ERA groups ramped up their opposition during that time and, the 38-state ratification requirement was never met and the robust national fight for ERA ratification died.
Now, almost four decades later, there is an encouraging resurgence of the women’s movement which has contributed to a renewed interest in the ERA. In a promising step, Nevada was the first state since 1982 to ratify the amendment in 2017.

Where Does the ERA Stand?
The first step is to fill the gap and get the 3 additional states required to ratify the ERA. So far, Nevada (March 2017) and Illinois (May 2018) have done so. That leaves 13 unratified states. The next most-likely-to-ratify states are currently: Virginia, Arizona, North Carolina and Florida. Other states with organized and growing numbers of ERA activists on the ground include Georgia, Missouri and Utah.

Once the final state ratifies the ERA (which will hopefully happen in 2019), the fight will center around eliminating the previous 1982 ratification deadline in Congress.

Has this ever happened before?

There is a recent precedent for successful ratification of a centuries-old amendment. The 27th Amendment, which regulates congressional pay raises, was ratified over 200 years after it was first proposed. So, it is conceivable that this could happen with the ERA as well, given the right conditions in Congress. It is important to note that unlike the ERA, the 27th Amendment never had a deadline affixed to it of any kind, but 37 years compared to 200 doesn't seem too long for the ratification process.

Would the ERA change things overnight?

The ERA has a 2-year enactment clause and is not likely to usher in a huge amount of immediate change in the short term. But, in the long term, it would be a permanent protection against laws that discriminate on the basis of gender.

Like any other amendment, for example, the First Amendment, the body of law (legal precedent) would have to be litigated and developed using the ERA over time to protect women. But, the bedrock principle and protections would be enshrined in our most basic legal document, changing the law and cementing the incredible legacy of pioneers of sex discrimination litigation. It would give our nation’s next generation a permanent, invaluable tool for gender equality.

What can I do to help?

See this ERA Action Sheet and sign up to receive ERA alerts and actions from Equality Now. 

For further information:

Teen Vogue op-ed about the ERA

Unladylike podcast about the ERA

New York Times article on Ratification in Illinois

A1 NPR podcast on the ERA

Vox piece explaining the current ERA fight

Glamor story about the ERA

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