We still need the Equal Rights Amendment, even after a century of debate

Virginia’s Nov. 5 state election, in which the Democratic party won a majority in both the Senate and the House for the first time since 1995, is important far beyond the state—and not just because Virginia happens to be a battleground for the upcoming presidential election.

Once the the new legislature comes into power in January 2020, its newly-elected Democratic candidates have expressed that they intend to ratify the Equal Rights Amendment (ERA). The amendment, approved by Congress in 1972, would alter the US Constitution to expressly forbid any sort of discrimination on the basis of sex. If that happens, Virginia will become the 38th state to ratify the amendment, finally meeting the threshold for the amendment to be added to the Constitution.

Most state constitutions, including in places that haven’t ratified the amendment, already include amendments for gender equality, and there are several federal laws (such as the Equal Pay Act of 1963, the Pregnancy Discrimination Act of 1978, and Titles VII and IX of 1964 and 1972 respectively) that make discrimination against women illegal. So, why is the ERA still important?

Adding the amendment to the Constitution would give equality between sexes the highest possible legal protection, filling any gaps left open by individual laws or non-binding legal precedents. “There is no shelf life for equality,” said Nevada state senator Pat Spearman commenting the prospect of Virginia’s ratification of the amendment.

Making discrimination based on gender illegal on a constitutional level would provide stronger grounds to cases concerning, for instance, discrimination in the workplace or gender violence.

The amendment would shape future laws, too. Federal courts would have to evaluate any law that might attempt to deny access to contraceptive care on the grounds of religious beliefs, for example, to determine whether it creates unequal treatment for women—a condition that is not currently a requirement for a law to be constitutional.

More philosophically, mentioning discrimination on the basis of sex in the Constitution shows victims that it’s something that does exist and happen. In turn, this would make claims of gender discrimination—in wages, for instance, or career opportunities—rest on much more solid grounds: People who feel that they have been subject to gender-based discrimination would not need to demonstrate that such discrimination exists before demonstrating they were a victim of it.

Even though it’s been going for nearly a century, the process for getting the ERA approved won’t be quick or simple. The amendment was initially meant to be ratified by 1979, then Congress extended the deadline to 1982. If Virginia ratified the amendment in 2020, it would obviously not meet that deadline.

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