On January 15, 2020, the state of Virginia became the 38th, and final state needed, to pass the Equal Rights Amendment and amend the constitution. The Equal Rights Amendment aims to protect citizens from discrimination based on sex.
Initially drafted by the National Women’s Party in 1923, the Equal Rights Amendment states “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” This amendment would be the first of its kind to provide fundamental legal protection for citizens based on sex or gender- protecting men, women, and gender-nonconforming individuals.
Originally passed on March 22, 1943, the Equal Rights Amendment was on track to amend the constitution, but many opposing political coalitions fought vigorously against the Equal Rights Amendment and the women’s liberation movement that accompanied. The STOP- Stop Taking Our Privileges- campaign launched claiming that the amendment would take away rights from women- specifically focusing on the rights of mothers and wives. With so much opposition, the amendment eventually stalled out before the 1982 deadline without reaching the necessary threshold of states to ratify the constitution.
Over the last few decades, the Equal Rights Amendment lost its momentum, but with the #metoo movement and the election of President Donald J. Trump, a renewed interest was ignited. After the election of Donald Trump, many citizens were outraged, seeing Trump as an opponent of women’s rights. As a result of his election, women’s marches sprouted all across America, resulting in the Equal Rights Amendment’s ratification by Nevada in 2017, Illinois in 2018, and Virginia in 2020.
Constitutional scholars are now questioning whether Virginia’s historic vote will amend the constitution, citing that the deadline has passed. The original deadline for the amendment to be ratified passed in 1982, but supporters of the Equal Rights Amendment claim congress can update this deadline to ratify the constitution. The Justice Department’s Office addressed this claim by releasing a memo which states, “We conclude that the ERA Resolution has expired and is no longer pending before the states.” However, experts say the Justice Department’s memo is incorrect. According to scholars, while congress does have the ability to place deadlines on the ratification of amendments, it also can extend said deadlines, meaning that Congress could extend the 1982 deadline, and therefore, amend the constitution.
Opponents of the Amendment cite that five states- South Dakota, Nebraska, Kentucky, Idaho, and Tennessee- have repealed their ratifications of the ERA. These reversals, if held up, would bring the total number of states that have passed the amendment back down to 33, making any further defense null and void.
There are currently two bills in congress aiming to remove the deadline. In the House of Representatives, Representative Jackie Speier, a Democrat from California, has sponsored a bill that would remove the deadline and recognize the Equal Rights Amendment as a valid component of the constitution. In the Senate, there is a bipartisan effort to pass a law that would remove the deadline. Senators Ben Cardin, a Democrat from Maryland, and Lisa Murkowski, a Republican from Alaska, are co-sponsoring the bill that would clear the path for the Equal Rights Amendment to be validated.
While there are many efforts to make the Equal Rights Amendment an official component of the constitution, there is an equal amount of effort to keep the amendment from making its way into the constitution. Attorney Generals from Alabama, Louisiana, and South Dakota have filed a lawsuit hoping to block the ratification saying the amendment would expand access to abortion and lead to additional lawsuits over accommodations that would possibly be granted to those protected by the amendment.
Alabama Attorney General Steve Marshall released a statement saying, “Where states have passed their state law versions of the ERA, courts have interpreted them to invalidate reasonable restrictions on abortion, require states to fund abortion, and mandate that boys be allowed to compete in sports against girls.” Neither chamber of the Alabama legislature has voted on the Equal Rights Amendment.
While people on both sides of the Equal Rights Amendment debate are fighting fiercely to defend their positions, the battle is expected to make its way to the Supreme Court. Many activists are pessimistic about the odds of any victory from the court because of the conservative majority. However, not everyone has lost hope. Proponent of the amendment and Virginia state Senator Jennifer McClellan told The Atlantic, “I still have faith that this is going to happen sooner rather than later.”