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.
These three simple sentences are the Equal Rights Amendment, better known as the ERA. The ERA was passed by Congress in 1972 and sent to the states for ratification. Its original deadline for ratification was extended to June 10, 1982, but as of that date, it was three states short of the 38 required for ratification. The states that have not ratified the ERA are: Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah and Virginia.
Legislation has been re-introduced in Congress that would impose no deadline for ratification, but it has not passed. Efforts are also being made to seek passage of the amendment in some of the states where it has not been ratified.
A shorter version of the ERA was first introduced in Congress in 1923, the 75th anniversary of the 1848 Women's Rights Convention. It was re-introduced in some form in every session of Congress until it passed in 1972. At that time, concerns were expressed about how equal rights would affect matters as diverse as women in the military and same-sex bathrooms. In the 34 years since its passage, there have been a number of changes in women's roles in the United States, such as increased representation in universities and certain professions, including the military.
The perception of need for a constitutional amendment to protect women's rights has waxed and waned in the public consciousness. In 1977, the U.S. Commission on Civil Rights published a report called Sex Bias in the U.S. Code, which was co-authored by Ruth Bader Ginsburg (before she was appointed to the federal bench), that explained how the ERA would change federal laws to eliminate sex-discriminatory provisions. Several people I have spoken to recently about the ERA expressed surprise that women are not already guaranteed equal rights under the U.S. Constitution; and others expressed a lack of need for it since Washington has ratified it and Congress has passed laws such as Title VII and Title IX that protect women.
The patchwork of state-granted rights and federal law is not the equivalent of constitutional protection because federal rights can be taken away by majority vote in Congress, and the degree of protection under state law depends upon what state you are in, and can also change over time. Additionally, there are areas where equality is established by judicial rulings, and a constitutional amendment would provide a stronger framework for such rulings, especially if state or federal law were to change.
Personally, I am concerned that there are generations of women who grew up after I did who are not aware that many of the rights they rely on only date back to the 1970s, and that these rights could be lost through amendments to state or federal law. I understand that there are others who support the ERA because it will also guarantee equal rights for men.
Several organizations remain dedicated to the ratification of the ERA, such as the ERA Task Force of the National Council of Women's Organizations, the Alice Paul Institute and the National Organization for Women, among others. They can be contacted for more information on the efforts to get the ERA passed in at least three more states, and the efforts to extend the deadline for ratification in Congress.
Karen Sutherland is the chair of the Employment and Labor Law Practice Group of Ogden Murphy Wallace, P.L.L.C. and chair of the Bar Bulletin Committee. Her practice includes employment law, workplace training and conducting workplace investigations. This article is a brief outline of a complex subject, and is not a substitute for legal advice. Sutherland can be reached at ksutherland@omwlaw.com.
