Women Aren't in the Constitution. What Would Change If They Were?

The nearly century-long fight to pass a constitutional amendment that would establish explicit protections against sex discrimination under the law has gained renewed momentum in the last couple of weeks, following a blue wave in Virginia and a subsequent move from Congress.

On Wednesday, the House Judiciary Committee passed a resolution that would remove the deadline on the Equal Rights Amendment, an amendment to the United States Constitution that would guarantee Americans equal protections under the law regardless of sex. The deadline for states to ratify the amendment expired in June 1982, with just three states short of the 38 necessary to amend the Constitution.

But between 2017 and 2018, two more state legislatures—Nevada and Illinois—have voted to ratify the amendment, and when Virginia Democrats won back control of the state legislature earlier this month, it created the conditions for the state to become the 38th and final supporter of the ERA, making it viable once again.

Now, 96 years after the ERA’s initial proposal, some say the amendment is largely symbolic: Women have made significant gains over the last century, and, for the most part, U.S. federal law—on its face—no longer permits blatant discrimination against them. Viewed in this way, the ERA is a modest proposal, intended only to rectify the fact that the architects of our country’s foundational legal document didn't include women in it. Yet others argue that—while yes, it may function as a powerful symbol—the ERA still has the potential to radically transform the way women are treated by the legal system, and address the obvious societal inequalities that still exist between men and women.

“Women were intentionally left out of the Constitution, and in those several hundred years since we’ve seen a culture that is premised to some degree on the idea that women are second-class citizens,” said Jessica Neuwirth, the president of the ERA Coalition. “The ERA says that, at the highest level of our law, women and men are equal citizens. I think that will have a tremendous impact.”

The ERA is a constitutional amendment that was introduced by the suffragist Alice Stokes Paul in 1923, just three years after states ratified the 19th Amendment. As it was originally conceived, the ERA read: “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.”

Later, in 1943, the wording changed slightly to read as it does now: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

It also seeks to expand the equal protection clause of the 14th Amendment formed after the abolition of slavery. Although Justice Ruth Bader Ginsburg helped establish the precedent that the amendment pertains to sex too, ERA advocates say the language of the 14th amendment is still too narrow to fix the gaps in the legal system.

"The 14th amendment has not really been effective because it’s related to state action; a lot of the discrimination we’re dealing with is in the private sector," Neuwirth said.

Gender-based violence. ERA advocates argue that the amendment would have the greatest effect on the way gender-based violence is litigated in court. While currently, victims of domestic violence and sexual assault can appeal their cases through legal system, they can only go so far: In 2000, the Supreme Court struck down a provision of the 1994 Violence Against Women Act, which allowed victims of gender-based crimes to sue their attackers in federal court. The ERA could help fill in this gap in the law and give women one more avenue for seeking justice under the law.

Workplace discrimination. The ERA may also have a positive effect on pay inequity and pregnancy discrimination. On paper, both are illegal, but experts say hidden loopholes have made the law easy to skirt. “There are laws that provide everyone should be given equal pay for equal work,” Neuwirth explained. “But one legitimate factor that can legally affect your pay is what you were paid at your last job. Well, who gets paid less?” Neuwirth said the ERA could help break women out of this “vicious circle” that allows companies to lawfully pay them less for the same job.

And when it comes to pregnancy discrimination, it still remains the case that employers can, in effect, refuse to make accommodations for pregnant employees: In 2015, the Supreme Court ruled that pregnant employees must demonstrate that an employer’s demands impose a “significant burden” on them, and that the employer’s reason for imposing the burden is not “sufficiently strong” in order for their employer’s behavior to be considered discrimination. That means if a company doesn't make many accommodations for non-pregnant employees, then it doesn't have to accommodate pregnant workers either.

“Will the ERA fix all of these things? Not necessarily; it’s not an immediate fix,” Neuwirth said. “But right now, the law isn’t working and that’s because of the way it’s been interpreted. That’s why we need another framework.”

Abortion. The ERA’s potential impact on abortion rights remains one of the most contentious aspects of the amendment. Some Republican lawmakers have claimed that the ERA would provide the basis for rolling back abortion restrictions. Reproductive rights advocates vehemently insist that’s not the case, some going so far as to say the ERA has nothing to do with abortion. But there may be a sense in which there is a kernel of truth to each side’s argument. While the ERA wouldn’t provide people with a constitutional right to abortion— Roe v. Wade already does that—it could provide lawyers with another legal framework to argue against restrictions in court.

“The right to abortion has been framed as a privacy issue and that allows for that fact that states can take an interest in the status of the fetus once it’s viable,” said Kelsy Kretschmer, an assistant professor at Oregon State University with expertise on the ERA. “The ERA could instead frame abortion as equality for women under the law, and that would be a very important shift in the legal conversation around abortion.”

Kretschmer said she understands why, strategically, ERA advocates would want to keep abortion out of discussion of the amendment. In the 1970s, Phyllis Schlafly and her conservative allies used abortion to sow opposition to the ERA, falsely claiming that the amendment would repeal “all and every kind of anti-abortion laws that we now have.” Schlafly also used the specter of same-sex marriage, women in combat, and the collapse of the nuclear family to foment fear over the amendment.

“It does seem reasonable that advocates for the ERA would like to keep it as straightforward as possible,” Kretschmer said. But in 2019, with much of the blatant discrimination against women in the law has been expelled, the final frontier of women’s equality may be fighting for these subtler forms of discrimination, she argued, abortion restrictions among them.

“The battles that remain to be won are the ones that treat women differently because of ideas about what role they play in society,” Kretschmer continued. “If you’re not going to fight those battles, I don’t know what the point of the ERA is.”

The House Judiciary Committee’s decision to lift the ERA deadline is just the first step in what could be a somewhat protracted effort to get the amendment ratified. While Virginia’s new Democratic majority all but guarantees the amendment will make it to the floor for a vote in favor of ratification, even if the U.S. House and Senate both vote to get rid of the 1982 deadline (a tall order given that Republicans currently control the Senate), there is still some ambiguity as to whether that means the ERA will become part of the Constitution.

First off, in the 1970s, five states rescinded their ratification of the amendment: Idaho, Kentucky, Nebraska, South Dakota, and Tennessee. When ERA advocates attempted to dispute their rescissions in 1982, appealing a case up to the Supreme Court, justices refused to hear the case because they said the ERA’s expired deadline made the matter moot.

Still, there’s some precedent when it comes to the court permitting an expired deadline on a constitutional amendment: In 1939, in a case related to a proposed amendment about child labor, the Supreme Court ruled that Congress has the “final determination of the question whether, by lapse of time, its proposal of the amendment had lost its vitality before being adopted by the requisite number of legislatures.”

ERA advocates could use this case to advance their cause, but it could be contentious.

“The Supreme Court has held that an amendment that has [an expired] deadline can be valid, but it has never had the opportunity to decide what would happen if three-quarters of the states ratify it and the only thing standing in the way is the deadline,” said Linda Coberly, the chair of the ERA Coalition’s legal task force. “It seems clear that there will be litigation over that issue.”

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