In March 2021, the House voted to extend a deadline for ratifying the Equal Rights Amendment (ERA), which would formally ban discrimination on the basis of sex and has lingered in a state of limbo for decades.
The joint resolution (H.J. Res. 17) passed the House in a 222-204 vote that fell largely along party lines. Four Republicans joined all Democrats in favor of the resolution, which was introduced by Rep. Jackie Speier (D-Calif.) and Rep. Tom Reed (R-N.Y.). The House passed a similar resolution in 2020, but the Senate, controlled by Republicans at the time, did not bring it up for a vote.
“We care about ensuring every individual in our great nation, regardless of gender, has the opportunity to enjoy the same basic rights before the law,” Reed said in a statement introducing the resolution. “For survivors of sexual violence, pregnancy discrimination, or unequal pay, the ratification of the ERA will be a critical step towards equal justice. This isn’t an issue of politics — it’s an issue of fairness for all Americans. Congress must press forward and end any unnecessary barriers to the ratification of the Equal Rights Amendment.”
The original amendment was written by members of the National Woman’s Party in 1923. Congress eventually passed it in 1972 but included a seven-year deadline for it to be ratified by three-fourths of the U.S. states. As states steadily brought it up — and a fierce campaign emerged to defeat ratification — the deadline was later extended to 1982. However, only 35 of the necessary 38 states had ratified it by then.
The ERA came back into prominence around the time of the #MeToo movement in 2018. Proponents argue that while the Constitution does not directly discriminate on the basis of sex, it does not protect against it.
“We are the only country with a written constitution that does not prohibit discrimination based on sex,” Speier said during a House floor debate in March 2021. “Shame on us. There can be no expiration date on equality.”
In addition to lawmakers, advocacy groups, organizations and businesses have also spoken out in favor of extending the deadline. In 2020, more than 90 businesses, including Apple, Microsoft and Google, signed onto a legal brief filed in support of the amendment.
Opponents of ratifying the ERA, however, argue that the 14th Amendment already provides equal protection under the law. Some have argued that adding the ERA as the 28th amendment to the Constitution could pave the way to greater abortion access.
“ERA advocates have been unequivocal about their support for abortion and using the ERA to overturn prolife laws,” Rep. Vicky Hartzler (R-Mo.) said on the House floor before the vote on the resolution. Hartlzer also argued against the House resolution due to its language, which provides protection for the transgender community, arguing that it could “codify inequality for women.” Hartzler gave the example of nine California women who were sexually harassed in a women’s shelter by a biological male identifying as female. The resolution now moves the Senate. Sens. Ben Cardin (D-Md.) and Lisa Murkowski (R-Alaska) introduced a version of the resolution and both have been reported to be building support for the measure in both parties.
The resolution would need the support of at least 10 Republican senators along with all 50 members of the Democratic caucus to overcome a potential filibuster. Even if the Senate passes a resolution and extends the deadline, the fate of the amendment is still uncertain because of legal questions around state approval.
In January 2020, Virginia became the 38th state to ratify the ERA, a landmark threshold that would give it the necessary level of approval to become part of the Constitution. Nevada and Illinois had also passed the amendment after the 1982 deadline. However, a federal district judge ruled in March 2021 that those three states’ actions were “too late to count” given that the deadline to ratify the ERA had expired.
Adding another potential hurdle, five states that had previously approved ratifying the ERA have also since rescinded that approval. While Congress has previously ignored state rescissions regarding the 14th and 15th Amendments, a federal district court in Idaho ruled in 1980 that the state’s rescission of the ERA was valid.
Thus, the debate around whether it is too late to ratify the ERA, as well as whether or not states can rescind prior approval for the amendment, could continue for some time, with a future determined by courts and statehouses.
For more background, see the March 2019 issue of Congressional Digest on “Gender Equality in the Constitution.”
