Next year the U.S. will mark 100 years since the introduction of the Equal Rights Amendment to Congress. Of the milestone, Gloria Steinem remarked, “I never thought we would still be fighting this battle after all these years.”
Steinem, along with Carol Jenkins, president emerita of the ERA Coalition, and Mona Sinha, board chair of the ERA Fund for Women’s Equality, formed a panel at Smith College on Sept. 16. Joined by moderator Becca Damante, a Congressional legislative aide, the three discussed the merits of the ERA and its relationship with democracy.
Sinha, for her part, believes the ERA is crucial: “There can be no democracy without equal rights. It’s the very fundamental definition of democracy. And I think that what the Equal Rights Amendment does is it guarantees that every human being that lives and breathes and works in this democracy has the same rights.”
When the ERA was first introduced in 1923 by Rep. Alice Paul, she was hot off a win, having secured the passage of the 19th Amendment three years prior. Enshrining gender equality in the Constitution was the next big battle to be won. The ERA has been introduced in every session of Congress since, but it did not gain traction until the 1970s when more women were in Congress and there was broader legislative support. In 1972, almost 50 years after it was introduced, both chambers of Congress passed the amendment and sent it to the states for ratification.
Within a year, 30 of the needed 38 states ratified the amendment. However, conservative opposition quickly rose. According to Steinem, insurance companies, among others, were particularly motivated to prevent the passage of the ERA because it would cost them money. “Health insurance interests alone stood to lose billions if the ERA forced it to stop charging women more for less coverage, and since that industry was largely state-regulated, it had lobbyists in every state capital,” Steinem and Feminist Majority president Ellie Smeal wrote for the LA Times in 2020.
Money, along with deeply ingrained misogyny and propaganda, is a powerful motivator. States stopped ratifying. By 1982—the extended deadline for ratification—only 35 states had voted yes.
During the panel, Jenkins recounted Paul had “cried when she heard that the deal was that it would be a time limit. She literally cried, because she understood the game had been set against us.” Some pro-ERA activists believe the time limit is arbitrary. Damante noted the time limit was in the preamble, not even the actual text of the amendment.
The Nevada legislature must agree—in 2017, they ratified. In 2018, Illinois followed suit. On Jan. 15, 2020, Virginia became the 38th and final state to ratify the Equal Rights Amendment. However, following the ratification, President Trump and the Department of Justice’s Office of Legal Counsel (OLC) issued an opinion arguing Congress did not have the power to remove a seven-year timeline for ratification and therefore, the three most recent state ratifications were invalid. As a result, the archivist under President Trump, David S. Ferriero, refused to publish the ERA as constitutional law.
In January 2022, President Biden issued a revised OLC opinion: “The 2020 OLC opinion is not an obstacle either to Congress’ ability to act with respect to ratification of the ERA or to judicial consideration of the pertinent questions.” Thus, the determination of the ERA was given back to the states and Congress.
The current archivist did not publish the ERA, despite calls from the public and politicians alike—so the amendment remains in a gray area. But women’s rights and legal advocates hope to compel the current archivist to publish the Equal Rights Amendment as the 28th Amendment to the U.S. Constitution once and for all. Last month, the D.C. Circuit Court of Appeals heard oral arguments in the case of Illinois v. Ferriero, brought by two of the three final states to ratify the ERA: Nevada and Illinois. (The lawsuit was originally joined by Virginia, but the state dropped out earlier this year after Republican Attorney General Jason Miyares was elected; Miyares is opposed to the ERA.)
Pressure to finally add the ERA to the Constitution has been steadily increasing in recent years and is one of many vital issues facing America during the upcoming elections, alongside abortion rights.
As Steinem noted, “[The U.S.] is the only democracy in the world that does not include women.” The ERA would offer extensive protections to Americans, particularly regarding abortion rights, employment opportunities and LGBTQ+ rights. With the overturning of Roe v. Wade in June, the need for a constitutional guarantee of equal rights is more important than ever.
Jenkins, for one, was not surprised that Roe fell. She predicted something like this would happen if the ERA wasn’t published:
“So we don’t want to say we told you so, but we told you so. We said for years the Equal Rights Amendment was necessary to protect the rights of women. And we would get pushback from people who would say, ‘Oh, we’ve got Roe, we’ve got X, Y, Z, we’ve got all of these things. We don’t need an Equal Rights Amendment.’ And of course, what do you really need in addition to these momentary bills and acts? Because that’s all they are. They could be washed away with the next vote. You need a fundamental Constitutional grounding for women’s rights and equal rights.”
“The important thing is to keep fighting,” Sinha said.
According to the panelists, 85 percent of Americans believe the ERA already exists in the Constitution. But the fact remains: In the U.S., there is no constitutional guarantee of equal protection under the law, particularly regarding sex. Only by empowering others with this knowledge can we make meaningful progress toward a better, more equitable future.
It is crucial to hold elected officials accountable, particularly with the midterm elections approaching. Voting at all levels is necessary for social change.
The fight to secure the ERA has been a long one, but it is not over yet. In fact, one of the most important actions one can take is to bring the ERA up in day-to-day conversation. As Steinem explained, simple actions like wearing an ERA pin or shirt, can spark meaningful conversation and change.
When asked why the ERA has yet to be added to the Constitution, Steinem noted, “because it means something.”
U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.