A New Era for Women: The Time Has Come for the ERA to Become Part of the Constitution

This article is part of a longer feature piece in the Winter 2021 issue of Ms.—”A New Era for Women”—breaking down President Joe Biden and Vice President Kamala Harris’s promise to “build back better” on women’s rights to health care, economic security and physical safety. Check back every Wednesday for new installations of this series, or get caught up here. And become a member today to read the entire issue—through our app and in print.

One of the most important actions the Biden and Harris administration can take—one that will affect all areas of women’s and girls’ lives—is ensuring that the Equal Rights Amendment becomes part of the U.S. Constitution. “Passing the ERA, let’s start there,” Harris told an audience in Iowa during a campaign event in 2019, when asked what she would do for women in the first 100 days if elected president. 

When the amendment received its 38th state ratification (the final one needed) in January 2020, the Trump administration blocked the national archivist from certifying the amendment, and the Department of Justice (then headed by Attorney General Bill Barr) issued a 38-page opinion arguing that the final three states’ ratifications were too late and did not count. The attorneys general from those states—Nevada, Virginia and Illinois—filed a lawsuit to force recognition of the amendment, but the Biden Justice Department can simply withdraw Barr’s opinion and direct certification of the ERA as the 28th amendment to the Constitution, at last guaranteeing equal rights to women. 

The Time Has Come to Certify the Equal Rights Amendment as Part of the Constitution, Say Reps. Carolyn Maloney and Jackie Speier
Reps. Maloney and Speier rallying at the steps of the Supreme Court for the Equal Rights Amendment in 2014. (Rep. Maloney / Flickr)

On January 22, U.S. Representative Carolyn Maloney (D-N.Y.) wrote a letter to President Biden and Vice President Harris asking them to direct the Department of Justice to rescind the Trump Administration’s Office of Legal Counsel opinion and directing the archivist to complete the amendment process by publishing the Equal Rights Amendment. 

“Clearing the way for the certification of the ERA by the national archivist will be a lasting legacy for the historic Biden-Harris administration,” said Eleanor Smeal, president of the Feminist Majority Foundation (publisher of Ms.) and longtime leader in the drive for ratification. “The ERA would provide a constitutional basis for gender equality. At last women and LGBTQ people could no longer be denied equal rights. The ERA will ban sex discrimination in all governmental laws, regulations and policies as well as in all private programs receiving public funding. Moreover, it’ll strengthen laws prohibiting sexual assault, harassment and violence—an area where President Biden has already been a national leader.”  

In addition to Rep. Maloney’s strategy for recognition of the ERA, there is also a legislative strategy. On January 21, Rep. Jackie Speier (D-Calif.) introduced a bill in the U.S. House of Representatives with bipartisan support of 195 co-sponsors, including Rep. Maloney, to remove an arbitrary timeline for ratification put into the preamble of the amendment by congressional opponents of the ERA. The next day, Senators Ben Cardin (D-Md.) and Lisa Murkowski (R-Alaska) introduced an identical bill in the Senate.

Rep. Maloney—who is related to Alice Paul, the author of the 1923 ERA—is the new chair of the powerful House Oversight and Reform Committee and has made it clear that she will hold hearings on the ERA bill.

The Time Has Come to Certify the Equal Rights Amendment as Part of the Constitution, Say Reps. Carolyn Maloney and Jackie Speier
“We have opportunity as never before to seize on this moment and make lasting change by finally ratifying the ERA,” said Rep. Maloney in June 2018 at the ERA shadow hearing. (Phi Nguyen)

Polling shows massive public support for the ERA. The vast majority of respondents—men and women; Republicans, Democrats and Independents—want the ERA, and most think the ERA is already a part of the Constitution. Nearly two-thirds believe that the ERA would have a positive impact for women. The amendment would strengthen women’s rights to equal pay and to be free from violence

The ERA would also protect against LGBTQ discrimination, because of last June’s Supreme Court decision in Bostock v. Clayton County that the word “sex” includes sexual orientation and gender identity. President Biden reaffirmed this principle in a January 20 executive order.

Representatives Maloney and Speier spoke to Ms. about prospects for the ERA finally becoming part of the U.S Constitution and what impact the Amendment will have on women and girls.

Carrie Baker: Why do we have to fight so hard to get the basic protections of the Equal Rights Amendment?

Congresswoman Jackie Speier: It’s by design. It was certainly by design to keep women out of the Constitution with our founding fathers, just like it was their intent to not count slaves, and think of black people as three-fifths of a person. We are second-class citizens, and we need to recognize that. And for all the women that say, I think things are pretty good…they’re pretty good until it happens to you.

If you go to the history of the Constitution, and recognize that it was intentional, that women were supposed to be second-class, because really, their spouses were going to take care of everything. Even as recently as the ’70s, you couldn’t serve on a jury, you couldn’t get a credit card without having it co-signed. You couldn’t buy a car. I mean, it’s fundamentally discrimination intended to keep women from achieving their highest and best outcome, personally and professionally.

Until it happens to you, you don’t see it. I’m of the mind that we have to do this. One way or the other, it is time. We have to do this, and I feel good that we have this window, but it’s going to close if we don’t act swiftly.

Almost hundred years after Alice Paul introduced the ERA in 1923 and we’re still talking about this. I hear Antonin Scalia’s words come back to me over and over again saying, “If the question is does the Constitution require discrimination based on sex, the answer is no. If the question is, does it prohibit discrimination based on sex, the answer is also no.” So, if the Constitution doesn’t prohibit discrimination based on sex, what are we doing?

The Time Has Come to Certify the Equal Rights Amendment as Part of the Constitution, Say Reps. Carolyn Maloney and Jackie Speier
Rep. Jackie Speier (D-Calif.), actor Alyssa Milano and Rep. Carolyn Maloney (D-N.Y.) at an ERA shadow hearing in June 2018. (Phi Nguyen)

Baker: What are the strategies to get recognition of the ERA?

Speier: There’s the legislation to strike the deadline in the preamble. In Article 5, there’s no reference to deadlines. So, here we’ve been dealing with this ridiculous deadline that was amended and extended. If you can amend and extend one, you can certainly strike it, is my attitude. Then, we would have the 38 states so the archivist would just accept the 38th state, and it becomes part of the Constitution.

Of course, during the Trump administration, they attempted through the Office of Legal Counsel to push their partisan agenda, and said that the Equal Rights Amendment was dead. Well, it wasn’t dead. It was just what they wanted. 

Baker: How else could we push for the ERA?

Congresswoman Carolyn Maloney: We just introduced Jackie Speier’s Bill that would remove the deadline. We will definitely pass it in the House. It’s a little riskier in the Senate. But there’s another approach.

When an Amendment is fully ratified, it goes to the archivist, who certifies it. We had a Republican president opposed to the ERA and blocked it. Well, guess what? Elections have consequences. We now have a Democratic president who, on his platform, has the ERA, and who was the principal author of the Violence Against Women Act. And Harris said that she’d like to see the ERA in the first 100 days. 

So Biden could send a letter to the archivist directing him to certify the ERA. Let’s get it certified and get it in the Constitution. Then, it will definitely be a court case. But if we get it in the Constitution, then it’s harder to take it out.

Now, also, I’m reintroducing the Equal Rights Amendment. If, for some reason, we fail, we are ready to go again. We are not giving up, and we are not stopping until we’re in the Constitution, because there’s one thing we’ve been taught these past four years as we sat there and saw some of our rights rolled back is it’s very, very important to be part of the Constitution. 

I would go out there and try like the dickens to get it [passed in the Senate], but at the same time, let’s try the Biden approach of appealing to the archivist and having it certified. One strategy should not deter another.

Baker: If you succeed, people opposed to the ERA would likely sue and appeal to the Supreme Court. Given the current conservative supermajority on the Court, does that concern you? Do you think that they would uphold it?

Maloney: I believe that there will be a great national debate on it and that we will win. Even if we don’t win at the court, then I think the fallback position of starting all over again would happen very quickly. But if we start all over again, I’m making one change to the language of the ERA. I’m going to add the word “woman.” I want the word woman. It was in Alice Paul’s original draft.

Speier: Well, you know, there’s always a tipping point. After George Floyd’s death, the Justice in Policing Act got great traction, certainly in the House. There will be a tipping point on the ERA. You would think we’ve already been there, but if the Supreme Court were to reverse something like the ERA passing both Houses and being ratified by three-quarters of the states, that would be a real tipping point about the Supreme Court. We could expand the size of the Supreme Court. We could make their terms for a period of years instead of for life. There are things you could do to make it more reflective of the population.

Baker: Several states have rescinded their ratifications. Do we have to worry about that?

Speier: Not really. There were states that rescinded their ratifications of the 14th Amendment and the courts held that rescissions were not allowed.

Baker: Do you think Congress will pass the bill removing the deadline?

Speier: Last February, for the first time in 36 years, we actually had a hearing on the ERA, which was pretty exciting. It passed the House, and then Mitch McConnell blocked a vote in the Senate. But Charles Schumer is going to be different. They’ll try to put a hold on it, and do all those kinds of crazy things. But I absolutely think we can do it. 

Maloney: I think yes. Congress has changed. Before we didn’t have the votes. Now we have them. We got a wave of women elected. In this last election, we elected a huge number of women. They can’t ignore the voters, and we’re half the population. So the vote is there for the ERA. You know that great quote from Martin Luther King—“the arc of the moral universe is long, but it bends toward justice.” It may take too long, but it sways the right way.

(Feminist Majority Foundation)

Baker: What difference will the ERA make? 

Speier: It’s the difference between having to go hat-in-hand and say, “Mommy, please,” versus, “This is a right that I have and I’m going to exercise it.” I mean, we are still struggling to get fundamental rights for women. Equal pay is a great example. The story that Tracey Rex wrote in Arizona, where she was in the Department of Education there, and became an education specialist, and her starting salary was $17,000 less than her male counterpart. It remained low, of course, throughout her whole career there. And so, she files a lawsuit, and even though there’s this Equal Pay Act, the court found that it was an acceptable business reason to base wages on a prior salary. These are very similar to modern-day Jim Crow laws.

The ERA will give Congress the power to do things like create civil rights. You know, it’s just 26 little words, right? It shouldn’t threaten anybody, and certainly, you know, men have daughters and granddaughters that they want to see achieve greatness, and we need to fix this once and for all.

“The stars have come together, and now is the time to make it happen.”

Baker: Why is it important to pursue the ERA now?

Maloney: I think all the stars have come together, and now is the time to make it happen. We have to follow several different courses, and the main point is we’re not going to give up until we get it. The last four years have highlighted to women the need for the ERA, because things that we thought were ours, that were hard fought and won, were turned around and deleted and pushed backwards.

For example, the stripping of the protections of Title IX, the protections for rape victims. The court decision in Michigan on female genital mutilation, a horrifying, absolutely shocking decision. It rattled me that we worked on that bill with the great Patricia Schroeder that forbid female genital mutilation, to have a Michigan court overturn it. The Trump Administration did not appeal it. In that court, it stands that female genital mutilation is legal, which is horrifying. [Trump’s] actions, certainly, in appointing anti-choice, anti-ERA, anti-women rights, anti-environmental rights, anti-labor rights people to the Supreme Court showed that we can’t control who’s in the White House or who they’re going to appoint, but the one thing we can control is the Constitution.

If women were in the Constitution, it doesn’t matter who gets appointed to the Supreme Court. They have to interpret it as protecting our rights, right? That’s where the fight should be. There are all these other fights out there. The one that matters is the Constitution. Then whoever the president is or the President of the Senate or the Speaker…who cares? It’s protected in the Constitution, and our rights should not be at the whim of who is elected.

If we can get this protection into the Constitution, we’d have ironclad protection for women. That is important. That is worth fighting for, and that is my priority. I’ve introduced it every year since 1998. And Alice Paul introduced the Equal Rights Amendment in 1923. Now a hundred years later, and we’re still waiting for it, trying to move it forward. The last four years, really, I think awoke women for the need for it with some of the really unhinged actions of former President Trump.

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Baker: Why is there still so much resistance to the Equal Rights Amendment?

Maloney: The bills that I’ve had for women have been incredibly hard to pass. There is an anti-woman feeling. There is still massive discrimination. We see that in the wage gap. We’re still at 79 cents for the dollar. It hasn’t moved, and it will not be moved until we pass the Equal Rights Amendment and you can enforce equal pay, enforce equality that is part of the Constitution.

I don’t understand it myself, but of all the bills that I’ve worked on, anything that empowers or helps women is, by far, the hardest.

Speier: It doesn’t make sense to me. It really doesn’t make sense, but there are some people that feel that somehow the fact that women are in the workforce, and now we exceed the number of men in the workforce, that that is disruptive to the family. You know, families are not composed of husbands and wives and 2.3 kids anymore.

But I think some of my colleagues still live in that kind of world. They somehow see the ERA as threatening that world. There’s a sense that since there are more men that are out of work, that women are taking their jobs away. There’s more women going to college, and graduate school, and law school, and medical school than men now. And they use religiosity a lot in their justification.

Baker: It seems like on the right, the ERA has come to be equated with abortion. How do you respond to that argument?

Speier: Well, I mean, abortion rights exist in this country already. So, we’re not changing that. It’s a bogus argument. It’s a red herring. This is about opportunity. This is about health care, access to health care. This is about access to safety. This is about economic opportunity. I mean, it’s really pretty basic stuff.

Baker: What can Ms. readers do to support your efforts to have the ERA recognized?

Maloney: Well, I think that there should be several efforts. They should write letters to Biden and Harris asking them to certify it, and I am working on a joint letter, hopefully with all the members of Congress, to Biden. I just sent him my letter to get started, and then I’m going to do a letter with the Women’s Caucus and every member of Congress. I’ll start a petition on my campaign site in support of this letter to Biden.

Another thing they can do is reach out to their elected senators and congresspeople to support Jackie Speier’s bill, the three-state bill, and then they can reach out also as a fallback position, for the Carolyn Maloney bill that starts all over again, with the only change being putting “women” in the Constitution.

Their voices matter. All of us are influenced by the people that speak to us and talk to us. So if they don’t tell us how important it is to them, then we won’t make it a priority. And the best way is to tell stories. I want to hear their stories of how they were discriminated against, how they were held back, how they were told that they were a woman and that they couldn’t do certain things because they were a woman. Tell me the stories, and I’ll share them to help educate my friends on both sides of the aisle in the United States Congress to win their encouragement and support for this long-overdue legislation.

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Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.