About the Equal Rights Amendment
The Equal Rights Amendment (ERA) would enshrine in the United States Constitution the concept of women’s equality and create a national legal standard banning all forms of sex discrimination in the supreme law of the land.
Brief History of the ERA
The ERA, authored by prominent suffragist and National Woman’s Party leader Alice Paul, was first introduced in Congress in 1923 and then again in every Congressional session until it first passed in the Senate and then the House on March 22, 1972.
Every proposed Constitutional amendment must pass by a two-thirds vote in both the House and the Senate, after which it is sent to the states for ratification. In the case of the ERA, however, Congress imposed a seven-year timeline in the preamble of the resolution on the ratification process. The timeline was not in the ERA itself and the states did not vote on it.
Three-fourths –38– of the states must ratify an amendment before it can become part of the U.S. Constitution. Hawaii was the first state to ratify the ERA, less than an hour after it passed out of Congress. Other states quickly followed. By January 1977, 35 states had ratified the amendment.
With the seven-year deadline approaching, women’s rights activists took to the streets to demand removal of the timeline, a movement led by the National Organization for Women (NOW) and its then president, Eleanor Smeal, co-founder and current president of the Feminist Majority Foundation (FMF). More than 100,000 people marched down Pennsylvania Avenue calling to remove the timeline. Furthermore, around 400,000 people sent telegrams to Congress demanding the timeline be removed, with the slogan “No time limit on Equality.” The amount of telegrams delivered caused the system to crash at Western Union, the largest provider of telegrams in the country at the time. In the fall of 1978, Congress granted an extension of the deadline until June 30, 1982.
The campaign for the final three states to ratify the ERA was intense. The Equal Rights Amendment had massive support even in unratified states. In Illinois, Florida, Nevada, North Carolina, and Virginia state public opinion polls showed strong support for the ERA, with substantial majorities. Support for the ERA was even higher in national polls. Hundreds of women’s, civil and labor rights groups supported passage including:
- National Organization for Women
- National Women’s Political Caucus
- League of Women Voters
- American Association of University Women
- National Federation of Business and Professional Women’s Clubs
- National Bar Association
- National Congress of Black Women
- National Coalition of Labor Union Women
- National Education Association and the American Federation of Teachers
- Generation Ratify
The ERA had support from major Democratic and Republican leaders alike, including former President Jimmy Carter, as well as celebrity supporters. Former First Lady Betty Ford and television celebrity Alan Alda were the co-chairs of the ERA Countdown Campaign and Maureen Reagan, daughter of former President Reagan, toured with the ERA campaign. In total, over 450 organizations with memberships of more than 50 million people participated in the national and state ERA campaigns.
Opposition to the ERA came from the South, led by Chambers of Commerce, the National Association of Manufacturers, and insurance companies working carefully behind the scenes. President Reagan was the first Republican president to oppose the ERA. He claimed to be in favor of the “Equal” and “Rights” parts but not the “Amendment” part of the ERA. Big corporations feared losing the cheap labor pool of women workers.
Insurance companies regularly discriminate on the basis of sex in premiums and benefits. For example, before the 2010 Affordable Care Act (ACA), health insurance plans charged women between 100 and 150 percent more than men for the same plans, citing “maternity claims” as the reason. Despite the fact that 80 percent of individual policies did not cover maternity. Insurance rates based on a binary gender system do not account for trans and non-binary people, cutting off access to health insurance entirely. The ACA bans sex discrimination in pricing and benefits and requires coverage for birth control, domestic violence claims, and maternity. The ACA, however, is vulnerable to being repealed with a simple majority vote in both houses of Congress, while the ERA would not be repealed once ratified. Misogyny and discrimination in health insurance impact gender minorities including women, trans people, and non-binary folks. This discrimination costs billions of dollars yearly.
Continued Need for the ERA
The ERA is now needed even more than when it was first passed in Congress in 1972. It is not just symbolic. The ERA would have a real impact on people’s lives.
The drive to ratify the ERA in the 1970s and 1980s helped to build a vigorous women’s rights movement that made impressive gains for women in education and athletics, employment and credit, reproductive health and rights yet these gains came under constant attack. Sex discrimination is systemic and cannot be eliminated law by law, state by state. Achieving equality requires that sex discrimination be explicitly prohibited in the highest law of the land, the U.S. Constitution.
Attacks by Congress and state legislatures are only one way in which people can lose protection from sex discrimination. The conservative majority of the Supreme Court has also limited or gutted federal statutes prohibiting sex discrimination, and the late Justice Antonin Scalia even stated in 2011 that nothing in the U.S. Constitution prohibits sex discrimination.
In June 2022, the U.S. Supreme Court overturned Roe v. Wade in their Dobbs v. Jackson Women’s Health Organization decision, and eliminated federally protected abortion access. The conservative majority dealt a significant blow to reproductive rights, endangering the bodily autonomy and futures of all people in need of legal abortion. Several states had trigger laws in place that immediately went into effect, creating near total abortion bans in over 14 states as of June 2023. Over half of all U.S. states are expected to try and place abortion bans or severe restrictions on legal access. Criminalizing abortion disproportionately affects those who are marginalized, with an estimated 75% of those seeking an abortion living below or near the federal poverty line, and drastically increases the maternal mortality rates of people of color.
In April 2023, a U.S. District Circuit of Appeals Judge, Matthew J. Kascmaryk ruled in favor of anti-abortion groups in a case threatening legal access to mifepristone. Mifepristone is one of two drugs in a regimen for medication abortion. In his ruling, he found that the FDA’s approval of mifepristone violated an archaic 19th century law, the Comstock Act. The Comstock Act bans the mailing of “obscene, lewd or lascivious” material including items for producing abortion. Judge Kacsmaryk’s interpretation of the Comstock Act is dangerous. A literal interpretation of Comstock could extend beyond blocking access to mifepristone, making anything used for an abortion such as basic medical instruments subject to potential restrictions or bans. While access to mifepristone is still legal, an ongoing court battle on the 5th Circuit Court of Appeals will determine the fate of this abortion pill.
The ERA would provide a strong basis for restoring federally protected abortion access. State level ERAs in Utah and Minnesota demonstrated successful challenges to abortion restrictions in their respective states. Adopting constitutional gender equality includes securing constitutionally protected abortion access and advancing reproductive rights.
The language of “on the basis of sex” also includes protections on the basis of gender. In 2020, the Supreme Court’s majority opinion ruled in Bostock v. Clayton County that sex-based discrimination includes gender-based discrimination. This precedent would allow for the ERA’s protections to include queer, nonbinary and transgender people.
The ERA would ensure the prohibition of sex discrimination in the highest law of the land, the U.S. Constitution. This would not only protect the gains women and queer people have won, but also provide a constitutional basis for proactive legislation and policies that would secure equality going forward. The ERA’s impact would deliver a basis for courts to secure substantive equality, expanding beyond the 14th amendment’s limited view of formal equality. This would allow lawmakers to usher in proactive legislation and policies that recognize systemic inequities across different groups of people and uplift historically marginalized people to achieve true equality and justice going forward.
ERA advocacy extends beyond amending the U.S. Constitution. Its effects would revitalize commitments to advancing gender equality in private sectors as well. The movement for equality will spread across public and private life, motivating pushes for laws and policies that advance gender equality in civil society.
Status of the ERA
The ERA has been reintroduced with dozens of sponsors in both houses of Congress in every session since 1982. These ERA resolutions have not included a timeline on ratification.
In addition, resolutions to rescind the arbitrary timeline on ERA ratification, which would obviate the need for Congress to pass the ERA again, have also been introduced in both houses of Congress. Since 35 states have ratified the ERA before January 30, 1980, only 3 more states would have to ratify for the amendment to be adopted. This is called the “three-state strategy.” In 2017, Nevada ratified the ERA. In 2018, Illinois ratified the ERA. In 2020, Virginia became the 38th state to ratify the ERA. The fight now moves to Congress and the courts.
A joint resolution was introduced in January 2023 by Rep. Ayanna Pressley (D-Mass.) and Sen. Ben Cardin (D-Md.) to remove the arbitrary deadline for ratification and recognize the amendment as part of the Constitution. The same language is used in both the House and Senate resolution:
“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that notwithstanding any time limit contained in House Joint Resolution 208, 92d Congress, as agreed to in the Senate on March 22, 1972, the article of amendment proposed to the States in that joint resolution is valid to all intents and purposes as part of the United States Constitution having been ratified by the legislatures of three fourths of the several States.”
In March, the Senate Judiciary committee held a hearing on the amendment – the first in the Senate on the ERA since 1984. The joint resolution has 169 bipartisan cosponsors in the House and 52 in the Senate. Senate Majority Leader Chuck Schumer has since promised to bring the resolution to a vote on the floor this session.
On March 28th, 2023, Congresswoman Ayanna Pressley and Congresswoman Cori Bush launched the first ever Congressional Caucus for the Equal Rights Amendment. Under their leadership as co-chairs, the caucus affirmed the ERA as the 28th amendment and renewed commitment for the ERA’s passage in Congress. In the House, Congresswoman Pressley introduced HJ Res 25 to remove the deadline on the ERA’s ratification.
We must demand a vote in the U.S. House of Representatives to remove the deadline on the ERA.
Lawmakers and activists continue to build movement towards passing state-level ERAs across the nation, with Nevada having passed an expansive state ERA in 2023, and New York and Minnesota headed towards election season in the next year.