Bonus Episode: Equality is on the Ballot

With Guests:

  • Jennifer Carroll Foy, a member of the Virginia House of Delegates who is running for governor in the state of Virginia. She joined the Virginia House of Delegates in 2017 where she led Virginia’s effort to ratify the Equal Rights Amendment, passed legislation to combat Virginia’s teacher shortage, and voted to expand Medicaid to 400,000 Virginians. She established the Virginia for Everyone PAC to help elect women, people of color and millennials to the Virginia General Assembly and was one of the first African American women to graduate from Virginia Military Institute.
  • Ellie Smeal, the co-founder and president of the Feminist Majority and the Feminist Majority Foundation and former president of the National Organization for Women. She has led efforts for the economic, political and social equality and empowerment of women worldwide for over three decades.
  • Lt. Gov. Juliana Stratton, the 48th Lieutenant Governor of Illinois. She leads the Justice, Equity and Opportunity Initiative, and chairs the Illinois Council on Women and Girls, the Governor’s Rural Affairs Council, the Military Economic Development Council and the Illinois River Coordinating Council.  Previously, she represented the 5th District in the Illinois House of Representatives.
  • Julie Suk, a Florence Rogatz visiting professor of law at Yale Law School and professor of sociology, political science and liberal studies at The Graduate Center of the City University of New York (CUNY). She most recently published, “We the Women: The Unstoppable Mothers of the Equal Rights Amendment” and is a frequent commentator in the media on legal issues affecting women.
Listen on:

In this Episode:

On January 15, 2020, Virginia became the critical 38th state to ratify the Equal Rights Amendment, or ERA—a proposed amendment to the U.S. Constitution that reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”  Virginia’s ratification raised important questions about the viability of an amendment that had been stymied for decades.

What does the promise of the ERA hold in the continued battle for equality and freedom? What roles have women of color played to secure the ERA? In the wake of Justice Ruth Bader Ginsburg’s death, what is the modern platform for women’s equality?

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Transcript:

00:00:05 Michele Goodwin: 

Welcome to “On the Issues with Michele Goodwin” at Ms. Magazine, a show where we report, rebel and tell it like it is. On this show, we center your concerns about rebuilding our nation and advancing the promise of equality. Join me as we tackle the most compelling issues of our times. On our show, history matters. We examine the past as we pivot to the future. On today’s show, we focus on the election’s reality: Equality is truly on the ballot.

On January 15 of this year, Virginia became the critical 38th state to ratify the Equal Rights Amendment, or ERA. The ERA is a proposed amendment to the United States Constitution that states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

Three-fourths of the states, or 38 states, need to ratify an amendment for it to be added to the Constitution.

So Virginia’s ratification raised important questions about the viability of the amendment that had been stagnant for decades. Can the ERA be added to the Constitution now, despite the 1982 deadline? Are the efforts of five states to rescind the ratification of the ERA valid? What needs to be done to finally add the ERA to the Constitution?

Helping us to sort out these questions and more of how we should think about these issues are very special guests.

I’m joined by Jennifer Carroll Foy. She is a member of the Virginia House of Delegates and running for governor in the State of Virginia. She joined the Virginia House of Delegates in 2017, where she led Virginia’s efforts to ratify the Equal Rights Amendment. She passed legislation to combat Virginia’s teacher shortage and voted to expand Medicaid to 400 thousand Virginians.

I’m also joined by Ellie Smeal. She is the co-founder and president of the Feminist Majority and the Feminist Majority Foundation and former president of the National Organization for Women

I’m also joined by Lieutenant Governor Juliana Stratton. She is the 48th lieutenant governor of Illinois. She leads the Justice, Equity, and Opportunity Initiative, and she chairs the Illinois Council on Women and Girls, the Governor’s Rural Affairs Council, the Military Economic Development Council, and the Illinois River Coordinating Council.

And finally, I’m also joined by Dr. Julie Suk. She is the Florence Rogatz visiting professor of law at Yale Law School and a professor of sociology, political Science and liberal studies at the Graduate Center of the City University of New York, CUNY. She most recently published We the Women: The Unstoppable Mothers of the Equal Rights Amendment and is a frequent commentator in the media on legal issues affecting women. Welcome to our Ms. Magazine show.

Thank you all very much for joining us to discuss these very important issues of our time, particularly in the wake of the passing of Justice Ruth Bader Ginsburg. So much is at stake right now in our legislatures and our courts. Why are women’s rights, women’s equality still important issues?

00:03:11 Ellie Smeal:

This is Ellie Smeal. They’re important issues because we still don’t have equality, and the pay gap still exists. All kinds of discriminations still exist under the law, and so until it’s straightened out, it’s going to be a heavy issue.

00:03:29 Michele Goodwin:

You know, Julie, let me turn to you. So how does the ERA address that? I mean, what does the rebirth of the ERA fight mean for gender equality? Can you give us some history to that, particularly given your new book, We the Women: The Unstoppable Mothers of the Equal Rights Amendment?

00:03:46 Dr. Julie Suk:

Absolutely. Thank you so much for having me on the show, and thanks for the question. So I think that women’s rights, when Pauli Murray testified in 1970 before the Senate Judiciary Committee, her statement linked equal rights for women to equal power for women, and I think that link has not been made in other sources of law for women’s equality.

There has been a lot of progress since the ERA was first introduced in 1923 and then adopted by Congress in the 1970s, but that progress has been about bringing the concept of sex equality into existing equal protection doctrines, and I think, fundamentally, that process hasn’t been perfect, even though it’s achieved a lot, and the difficulty is that there hasn’t been enough attention to women as Constitution makers and women’s voices and the fundamental power imbalance that exists.

00:04:44 Michele Goodwin:

And you mentioned Pauli Murray. Thank you so very much for bringing her up. You know, she really was a trailblazer, the true predecessor to Justice Ruth Bader Ginsburg, not only at the American Civil Liberties Union where they both worked and after Pauli Murray preceeded her, but really in laying a groundwork, a framework for both racial equality and also sex equality, and much of that pioneering work that she did has truly been lost to American jurisprudence.

So I’m so pleased that you mentioned her name, that you raised her up. Let’s listen to a clip of someone else that is important to the story, and that is Shirley Chisholm, the first African-American woman elected to Congress, and let’s hear what she has to say about equality. This is a clip from October 3, 1983, shortly after she’s decided not to run for Congress again.

00:05:38 Shirley Chisholm:

And I’m here tonight to speak specifically about women and Blacks, a coalition. I want to begin by reading to you the words of another famous woman of Massachusetts, Abigail Adams, the wife of the second president of the United States of America. In a letter to her husband at the Continental Congress back in the 18th century, she counseled the future president of the United States, and this is what she said thusly.

She said, remember the ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of husbands. Remember that all men would be tyrants if they could, and remember, this is not a modern-day feminist talking, ladies and gentleman. This dear old Abigail in the 18th century.

Shirley Chisholm. (Wikimedia Commons)

If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and we will not hold ourselves bound by any laws in which we have no voice or representation. End quote. More than 200 years after her quill pen scratched those words on the paper, this land, this society, and this economy are still dominated by husbands and by some tyrants who are determined to rule consistently and persistently.

00:07:34 Michele Goodwin:

So, Ellie, you know this history quite well. In the 1970s, as president of the National Organization for Women, you spearheaded the drive to ratify the Equal Rights Amendment, the largest nationwide grassroots and lobbying campaign in the history of the modern women’s movement. Tell us about what was successful with that and why did it fail?

00:07:57 Ellie Smeal:

Well, what was successful is that we put it on the map. I mean, essentially, everybody knew about it. We were way ahead in the polls. We were substantially ahead in the polls, and it really I think galvanized an entire movement. Even the pausing of it galvanized a movement because people could see where we were being cheated. You know, when you first start out, why do we need it? One of the things that we revealed was the massive discrimination in pricing and benefits in insurance.

And in fact, that fight goes on to this day. One of the things they don’t say about the Affordable Care Act enough is it now contains a clause that you cannot charge more or give less on the basis of sex, and up until that passage, which was only in 2010, women were paying as much as twice as much for health insurance and on the excuse that they had to cover maternity and 80 percent of the private insurance plans did not cover maternity. So we were getting it both ways. We’re paying more, getting less.

00:09:05 Michele Goodwin:

I think that that’s really hard for people to understand the way in which women have been discriminated against economically in such extreme ways, in ways that are not hidden, actually. So, Lieutenant Governor Stratton, I want to turn to you. In 2018, when the ERA was being ratified in Illinois, you were representing the 5th District in the Illinois House of Representatives, and during the debate, you spoke about the discrimination you have faced as a Black woman. After the ERA passed with a single vote to spare, you tweeted, “I’m so proud to take this historic vote to pass the ERA in Illinois.” Can you tell us about that?

00:09:49 Juliana Stratton:

Oh, absolutely, and I was very proud to cast that vote, and I remain very proud, and I remember that there was sort of just a conversation on the House floor, a very heated conversation, actually, because there were a lot of women of color, Black women in particular who were my colleagues in the Illinois House who were concerned that the issues relating to Black women were often being lost in this fight and in the conversation around equal rights. That, were Black women included in that conversation?

And when I stood to speak, I thought of my mother, and I thought of my grandmother and my great-grandmother, and dating back to the history that I spoke of when I was inaugurated as lieutenant governor about the women that came before me, including those that were enslaved, and I thought about my four daughters, four Black daughters that I have, and I stood on my ancestors’ shoulders. My daughters are standing on my shoulders, and really, what I just thought of is that I was fighting so that my daughters had rights to be protected under the Constitution.

And I did speak very candidly about sort of the discrimination that I’ve faced as a black woman, but that this was a way that we could continue to put a light on discrimination for women all across the board, and that what I urged everyone, all of my colleagues to do on the House floor, was to make sure that Black women and Latinas and Indigenous women and Asian women and all women will continue to be at the forefront of those conversations.

00:11:41 Michele Goodwin:

I’m so pleased that you mentioned that, because often overlooked in these struggles for equality happen to be how they impact the lives of Black and brown women, Asian women. You know, women’s movements generally have been thought of as white women’s movements, and therefore, having no real relevance for women of color, and so what was that like for you in trying to get that message across to other women of color in the legislature?

00:12:11 Juliana Stratton:

Well, you know, I don’t know how…I can’t recall the vote, so I can’t recall whether I was effective at getting that message across, but I can say that I spoke very passionately because I do really believe that, just as I think about Ida B. Wells and the women’s suffrage movement, when she was told she had been fighting for women to have the right to vote.

Ida B. Wells Barnett. (Wikimedia Commons)

But when it came to the women’s suffrage march, the first one, she was told to move along with about 60 other Black women to the back of the line in terms of marching, and she said either I go with you or not at all, and I think it’s the same sentiment that I brought up, that we all must do this together. If someone…our liberation is tied to each other, and if there’s only one group of women that are free, then none of us are free.

We all have to continue this fight for justice, equity, and opportunity, and we have to do it together. So I think I spoke as passionately as I could. I could say that I know that there were many who expressed that they certainly were supportive of the idea that, you know, it hasn’t always been right, but we are certainly going to be committed to making sure that, as we move forward, that we make sure that all women are included in that fight.

00:13:29 Michele Goodwin:

It’s such a critically important point that you’re making about the importance of all women aligning together and what this means in terms of lifting up many other boats. Let’s turn to Senator Pat Spearman, who’s from Nevada, but came to Illinois to share a bit about the Nevada story, and what’s important about what she says here in this clip is about the importance of what the ERA actually means for women of color. It picks up on exactly what you’re talking about, Lieutenant Governor Stratton.

00:14:00 Senator Pat Spearman:

So let me say this. In 1972, when it was introduced, some people thought maybe the same thing. When we in Nevada fought for the ERA, Black women, white women, Latino women, Asian women, everybody fought with me to get this. The 24 words guarantee the rights of women. It guarantees the rights of women. There’s no parsing of the words to say only white women. There’s no parsing of the words to say only Latino…it says all women. Now, we all know that when laws are passed, the next thing that has to happen are hearts and minds must be changed.

And so, over a series of years, hopefully not many, people will come to understand that it’s all women, and I believe, for once, for once, women who have suffered domestic violence, women who have suffered mental and physical abuse, women who have suffered, I believe that this, once and for all, will allow that woman to say it’s my Constitutional right for you to protect me. We’re still…we’re still fighting for pay equity. If we had pay equity, we wouldn’t need this. So, as a Black woman, I think it applies to me.

00:15:45 Other Speaker:

So let me ask you this question. Who would have to enforce this?

00:15:49 Senator Pat Spearman:

It would be the same people that enforced all the other amendments.

00:15:52 Michele Goodwin:

Delegate Jennifer Carroll Foy, thank you so much for being on the show. I want to turn to you now. You similarly played a pivotal role in this movement, not just a moment, leading the effort to ratify the ERA in your home state of Virginia. Now, as a sponsor of the House ERA measure, you told your colleagues that they were, quote, “taking the vote of a lifetime.” You said 160 million women and girls across the country are waiting and will forever be changed by what happens in this body here today. Can you speak to why it took so long for Virginia to ratify the ERA and your experience in leading that effort to ultimate success for your home state?

00:16:43 Jennifer Carroll Foy:

Absolutely. So thank you. It’s an honor and privilege to be here with such a distinguished panel, and thank you for inviting me, and so I wanted to ensure that Republicans, Democrats, independent thinkers, everyone knew what was on the line. That this shouldn’t be a partisan issue. Equality is for everyone, and everyone should be for equality, and so trying to look back and figure out why it hadn’t passed, what was the missing link, because Virginia had a great opportunity to finally be on the right side of history.

Virginia, the old capital, the Confederacy, I mean, we have fought against desegregation. We have fought against interracial marriage. We have fought against women’s right to vote. So this is an opportunity for us to finally be on the right side of history for a moment in time and to do the right thing, and so because I was one of the first women to ever graduate from Virginia Military Institute, because Supreme Court Justice Ginsburg played a large role in my life and my decision and trajectory that I’ve taken…

And I knew that she wanted the Equal Rights Amendment passed, which is one of the things she always said. She wanted her granddaughters to look at their pocket Constitution and to see the ERA there. I knew this was important. So galvanizing with Ellie Smeal and Feminist Majority and NOW and Delta Sigma Theta Sorority, Incorporated, and VA Ratify ERA, coming together to do a bus tour throughout the Commonwealth of Virginia to energize and excite people about the Equal Rights Amendment…

Del. Carroll Foy, Sen. McClellan, Del. Ayala. (VAratifyERA.org / CC BY-NC-ND 4.0)

Why it was needed and necessary, why it wasn’t a dead issue, why it was the answer to help us get equal pay for equal work and to help in sex discrimination and to let people know that there is a war on women. That is not hyperbole. I wish it was, but it really, truly wasn’t. Hearing the conversations amongst a lot of the far-right Republicans, it was an all-out assault on women’s rights for reproductive healthcare, our rights to be protected against violence, our rights for equal pay for equal work.

And so I knew that this would help move that agenda forward, and so doing that, making multiple stops across the commonwealth, ensuring people knew what was on the line, and then standing up to tell the Republicans there are some things that we can disagree on. Infrastructure and education, whatever, but not me being a first-class citizen in this country.

So if I can’t change your mind about women’s equality, I promise you this. I will change your seat, and with the help of all of these organizations, we were actually able to get that done, and we saw that women’s equality was on the ballot that next year, and we were actually able to win the trifecta here in Virginia because of it. So that’s how pivotal and moving this was.

00:19:28 Michele Goodwin:

So tell us about that trifecta, because sometimes people think, well, let’s just be slow about this because we don’t want to turn people off. We don’t want to turn people away. They’re just not ready for women’s equality. They’re just not ready to see women of color standing in front, leading something, and so just slow down, but that wasn’t the Virginia story. So can you tell us just a little bit about that trifecta that happened with women pushing forward and the successes that came?

00:19:54 Jennifer Carroll Foy:

Yeah, and you hit the nail right on the head. The Virginia way is incremental change, right? And so I was elected in 2017. I was a part of this wave of Democratic leadership that flooded over Virginia, and I believe in bold, transformational change and women’s equality, helping women reach their full possibilities and potential. It cannot wait any longer.

We have waited too long. We’ve waited long enough, and so we were able to get that trifecta because of the movement that we organized and mobilized, and then because of it, we were able to make Virginia the first Southern state to have LGBTQ+ protections in accommodations and employment. First Southern state to have 100 percent zero carbon emissions standard, making access to the valley easier, making voting a state holiday, repealing strict voter ID laws.

I mean, you name it, we did it, and it was because we galvanized the support and effort, and that’s what it means to make change and ensure that people know that we have to agitate for equality and never take no for an answer, and the time is now. We won’t be placated. We will no longer wait. We have to make movement and get this done. True equality, Constitutional equality now.

00:21:10 Michele Goodwin:

That’s really amazing, and just for our listeners, when you mention trifecta, can you just tell our listeners what that means?

00:21:16 Jennifer Carroll Foy:

Absolutely. So the trifecta means that we hold the entire general assembly. So we have the State House. We have the House of Delegates. You know, in some other states, it’s known as assembly members or our state version for the House of Representatives. So we have the entire general assembly, which is democratic, and we have the governorship.

00:21:36 Michele Goodwin:

My goodness, you guys really made some things happen there. I want to turn back to Dr. Suk because, with your book, one of the things that you fill the gaps in…and I really love the book. It’s an excellent book. Is that you raised the roof in many ways about the contributions of women of color to this movement, and often, women of color are written out of stories or their contributions are put to the wayside, but that’s not what you did in your book, and so you lift up Pauli Murray and Patsy Mink and Shirley Chisholm.

And you know, Shirley Chisholm said the Constitution they wrote was designed to protect the rights of white male citizens, as there were no Black founding fathers. There were no founding mothers, a great pity on both accounts. It is not too late to complete the work they left undone. Today, here, we should start to do so. Tell our listeners a bit about why that was so important to you, to put women of color in a central role of telling the story about women’s equality and that history of fighting towards women’s equality with regard to the Equal Rights Amendment.

00:22:47 Dr. Julie Suk:

Thank you, Michele. I think that women’s equality is important not just for women’s equality, but because of the future of constitutionalism in this country and the relationship of our constitutional future to our constitutional past, because we live in a country that, as Shirley Chisholm said, recognizes and reveres founding fathers without having official founding mothers, and it doesn’t have to be that way.

Many other countries have women in constituent assemblies after World War I and World War II and wrote Constitutions that included the equal rights of women. Most 20th century Constitutions do that. Almost all 21st century Constitutions are doing that, but our Constitution is one of the oldest in the world, and it was written by white men, some of whom owned slaves, and so Barbara Jordan said, as she was in a televised hearing about Nixon’s impeachment in the 1970s, that we the people…

That this is a Constitution that has legitimacy for people like me, women of color, people who are not included as full citizens at the founding. It has legitimacy because we can change it, because there is an amendment process, but if the amendment process does not allow for an amendment so morally unassailable as a guarantee of equal rights regardless of sex and a guarantee of equal rights to women, that Constitution loses legitimacy.

And I think the lack of founding mothers is a legitimacy problem for the US Constitution, and so if you look at the history of the ERA, it’s an amendment that was written by women, whose meaning changed over time because of the ways in which women participated in the democratic process. Women got elected to Congress. Women litigated cases and made law around what it means to have real equality in the United States.

And if you don’t legitimize that process by adding this amendment, it is a way of saying we still don’t have founding mothers, or even worse, we have founding mothers that we’re just not going to recognize, thereby undervaluing women’s work yet again. So I think that’s really what’s at stake with the ERA. There are a lot of specific issues we can think about.

Whether or not the ERA will do something about equal pay, what it will do around issues of pregnancy discrimination, but I think those issues are not really the main reason to have the amendment. It really has to do with what women’s role is as Constitution makers and people subject to the Constitution in the 21st century.

00:25:28 Michele Goodwin:

Well, it’s important that you mention that, particularly in the wake of the passing of Justice Ruth Bader Ginsburg. It’s important to note that during her time at the American Civil Liberties Union, following Pauli Murray, while they’re in charge of the Women’s Rights Project, she was involved in about 66 percent of the litigation on women’s equality or striking down sex-based discriminatory laws that went before the Supreme Court. So 66 percent of that dossier was Ruth Bader Ginsburg ACLU generated.

Justice Ruth Bader Ginsburg, Pauli Murray. (Wikimedia Commons, Wikimedia Commons)

And during her time there, there were more than 300 sex-based discrimination laws that the ACLU took on, both at the state level and also at the federal level. So, for those who are wondering, well, what is this all about…and that was only just a slice. So just think that 300 laws just being a slice of all of the sort of discriminatory impact on women. I want to turn to what this fight represents now, because there was a time window for ratification of the ERA.

And we saw that great movement in Illinois and great movement in Nevada, great movement in Virginia to solidify the number of states necessary for ratification. Where is this issue at now, Ellie? So there are some that say, well, it’s a little bit too late. This should’ve been done two decades ago, and so the fact that there was ratification in Nevada, Illinois, and Virginia, great, but too late. What do you say to that?

00:27:04 Ellie Smeal:

It’s not too late, and that battle is going on. Right after we ratified in Virginia, we got the timeline removed in the House, and right now, we’re saying that equality’s on the ballot right now on November 3, because if we flip the Senate from Republican control to Democratic control, we will then, in January, or very early in the new session, remove the deadline both in the House and the Senate, and we believe that that’s enough.

After all, they put that timeline on. They can take that timeline off, and that’s going to happen, and as you know, it’s also in the courts, and you know, these originalists keep on saying they’re going to, you know, do it according to the way it was written 200 years ago. Well, there was no deadlines in the amendment process of the Constitution, and there was no time limits. So, if you go by the originalist document, we’ve already ratified the ERA.

We’ve gotten it through the Congress, and we’ve gotten it through 38 states. This thing should be enshrined in the Constitution right now. We believe it’s on the ballot because we know for sure, if the new administration comes in, if the Biden Administration comes in, they’re going to not instruct the archivists through the Department of Justice. Imagine, Department of Justice is told…or the attorney general, the archivist, not to accept the ERA.

Well, when the Constitution was passed, there was no Department of Justice. There was no archivist, and the president was left out of the process. So, in my opinion, they’ll flip it by allowing the archivist to put it in, and so I think we’re going to have…it’s on the ballot. If we flip the Senate, flip who’s in the White House, I think there’s no question it will be enshrined in the Constitution.

00:29:06 Michele Goodwin:

So, before I return to Lieutenant Governor Stratton, I just want to add another question to that, Ellie. What’s your sense in terms of flipping the Senate? So there are going to be those that say, well, okay, that makes great sense, but does it look like the seats that need to move are going to be moved? Does it look like Mitch McConnell, that he’ll lose his seat? Does it look like Lindsey Graham may lose his seat or any of the others that are up?

00:29:30 Ellie Smeal:

Well, as you know, Lindsey Graham right now is in a tied race with Jamie Harrison, but not only that, there’s at least 10 seats that are being heavily contested. The Democrats are ahead in several seats already. I think it’s very possible. Either way, either we’re going to move the deadline that way, or we’re going to win in court, but I believe we have essentially done what the Constitution said we had to do.

We’ve ratified it by 38 states, the necessary three-fourths, and we passed it by the Congress, and so, basically, I think we’re in good shape, but I do feel we’re going to flip that Senate, and that’s why we’re working very hard on it, because we don’t want to leave any doubts. We’re this close. It’s taken us almost 100 years to get this close, and we’re going, and there’s a huge grassroots movement.

One of the reasons, by the way, we endorsed…we moved Jamie Harrison is that South Carolina ERA movement is so strong, that one of the first things he did is he came out for the ERA. See, there’s a grassroots movement here, and I think that, day in and day out, people have worked on the Equal Rights Amendments, and each state has, and as Jennifer just said, in Virginia, it took us a long time, and why?

Because it was blocked by the leadership of the House. They blocked it there for a reason, and the fight for equality has opponents, but the most important thing, it has had tremendous support from the grassroots, and the time is now for prohibiting, making no doubt about sex discrimination.

00:31:16 Michele Goodwin:

So I want to turn to Lieutenant Governor Stratton. You chair the Illinois Council on Women and Girls, which aims, in part, to put in place programs and advocate policies that work to end gender pay gaps and gender discrimination in professional and academic opportunities. It’s meant to allow women and girls to have legal protections and recourse in case of sexual harassment in the workplace. In light of this important work that you do, do you see significance in adding the ERA to the Constitution despite existing protections? Because there are some that say, well, look, there’s no real need for an ERA. You have women now who are in the legislature. They’re helping to pass laws that make protections for women and girls. Why need an ERA?

00:32:04 Juliana Stratton:

We absolutely need the ERA, and I just want to say that I’m a little starstruck. Ellie, you know, just to know the work that you have been doing for so long to get us to this point, and it’s so great to be with all of the panelists today who are just doing so much to lift up this issue, but what I loved is what you said right at the beginning. We still don’t have equal rights in so many ways. Like, we’re still fighting for equal access, and we’re still fighting for economic opportunity and all of the other issues that come about.

So our Illinois Council on Women and Girls, we have a group of about 22 women from across the state of Illinois, from urban communities, rural communities, from various backgrounds and areas of expertise, various racial and ethnic identities, as well as various gender identities, and you know, when you bring a group of women together and to really just allow them to tell their stories and to say in every single area…

Whether we are looking at veterans or whether we are looking at corporate America or whether we are looking at unions or whatever area, we are still seeing those inequities, and I think what the ERA does, besides bringing the constitutional context, it also brings some intentionality around making sure that we are considering the issue of sex discrimination and the impact of where we need to keep fighting for equity.

You know, I’m thinking about not just some of the issues that we’re working on in the council, such as making sure that more women and girls are directed to the STEM field, because we know only about 30 percent of women right now have STEM degrees, and yet everyone says this is the future, and this is where you need to be to make sure that there’s economic opportunity. Thinking about leadership for our council and what we are doing around leadership and inclusion.

We know that recent reports have come out around how COVID-19, when it comes to those leaving the workforce and leaving positions of power, those are women who are leaving those roles, not men. Women who are often, you know…I’m the lieutenant governor, but I’m also at home with a 4-year-old and making sure that, while I’m working, that I can also take care of a young child who cannot go to school right now. You know, when I think about the disproportionate number of Black trans women that are murdered

And of course, you know, lifting up the name of Breonna Taylor and speaking her name, because we know that as we think about Black women, as I said sort of in my opening remarks, that no one was even saying the name of Breonna Taylor broadly outside of Kentucky until George Floyd’s murder, and so these kinds of things…or healthcare. Health and healthcare, Black women being six times more likely to die during childbirth in Illinois than white women.

These are all issues that the ERA and this sort of intentionality around thinking about how we are due equal protection under the law and that looking at the differences based on sex that often present themselves in a number of policy issues that we see in our country, and it just, to me, spurs us on to say don’t forget about this. We still have to fight for this, and don’t think that we’ve arrived, regardless of who’s in the General Assembly or who’s in Congress.

Yes, there are more women, and I am grateful for that, and I’m going to keep fighting for more women to be elected to these positions of power and leadership, but at the same time, we know that this kind of discrimination has happened historically, and it is not going to be easy. Just like racial justice, these fights are not easy, but they must be done with intentionality and power and real focus, and I think that’s what the ERA does.

00:35:54 Michele Goodwin:

You speak with such clarity about those issues, and I really appreciate that. I want to turn to Virginia. So what we’ve heard before is that Virginia has been a hard nut to crack in some ways, and that’s true. Loving v. Virginia comes out of Virginia, banning interracial marriages. Buck v. Bell 1927 eugenics case comes out of Virginia and ends up in the Supreme Court with the Supreme Court sanctioning of Virginia law that provides for the compulsory sterilization of women who are considered to be morally or mentally, socially unfit. You’ve already talked about, Jennifer, the seat of the Confederacy being in Virginia. So I want you to tell us a bit more about the importance of electing women in Virginia. What has that done for your state, and how have the issues we’ve been talking about impacted the women in your state?

00:36:48 Jennifer Carroll Foy:

Some of the things that I try to emphasize is that we have to hold America accountable to its unfilled promises it’s made to women, people of color, marginalized communities in general. So we have guarantees and promises that were made about our democracy, that all men are created equal, liberty and justice for all, equal justice under the law, government of the people by the people and for the people, and we’re seeing that that’s not true.

We’re seeing that there are many people who have been left behind, left out, and it’s been reflected in the bills that’s been passed and the budgets that’s been passed where people aren’t being respected and allowed to be treated as whole, full citizens in this country, and so it doesn’t matter what you’re talking about. You could be talking about the systemic historical inequities in our healthcare and our environment, which has contributed to the disparate impact of minorities contracting and dying from COVID-19.

You can talk about the fact that there is still voter suppression that’s happening, even here in the Commonwealth of Virginia, and you see it in Georgia and other places, where some Black women are precluded from voting, almost at the same rates as their foremothers back in the 1920s. So there’s a lot that needs to happen, and one of the ways that we can get to this and through this is with the Equal Rights Amendment.

Justice Scalia was really clear in, you know, 2011 when he said that the Equal Rights Amendment does not protect against sex discrimination, and what he said was, certainly, the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that, and so we’ll continue to not be successful in our court cases.

We’ll continue to not live in our full constitutional equity because we have to change our laws and be very clear and write women’s equality directly into the Constitution, and so here in Virginia, it’s a moment. It’s a moment because now that we have basically ratified the Equal Rights Amendment, now I’m championing and carrying legislation to pass paid family medical leave. Now people are more open to my bill to end pregnancy discrimination we just passed.

So employers have to provide reasonable accommodations for women who want to breastfeed so they don’t have to go into the bathroom or into a closet and can’t be fired because they need to do these things. Helping to pass a bill to reduce the Black maternal mortality rate, which I just passed. Making doulas covered by Medicaid so Black and brown women can get the culture-competent care that we need.

Because in Virginia, because of the amount of melanin in my skin, I am three times more likely to die during childbirth and postpartum because of implicit bias and a lack of adequate care, and so directly addressing that, we can’t have women dying on our streets because of how we appear in the world, because of the amount of melanin in our skin. That just cannot happen, or making the bill I passed, making breast milk covered by insurance, because Black women are more likely to have low weight and pre-term babies.

So our babies should have adequate food and nutrients that they need when they first enter this world, and the lack of being able to pay should not be a reason that that doesn’t happen. So once we talk about the ERA and we get this done, there’s still work to do. We have to look at women holistically, and where can we fill in those gaps? We have to root our injustice anywhere it lays and attack it where it is so women can share full possibilities and potential, because the fight isn’t over.

When we’re talking about women’s equality, we’re still talking about affordable child care, protecting reproductive healthcare, and access to abortion. I mean, all of these things matter to us, and so we have to continue to agitate for equality and fight fearlessly for change, and that’s how we do it.

00:41:02 Michele Goodwin:

Picking up on that, Lieutenant Governor Stratton, I know from your team, that you might have to pivot off early on our show. So, before you go, though, I just wanted to turn to what you see as coming next in your state. What’s the work that lies ahead for you and for your colleagues who are fighting for the equality of girls and women? What should our listeners gear up for if they want to be helpful in Illinois, thoughtful in Illinois about just what’s at stake?

00:41:35 Juliana Stratton:

Well, we are working on making sure that we get the recommendations, the policy recommendations of our Illinois Council on Women and Girls to move forward, and I invite those who may want to contribute to that work to reach out to me at LTGOVStratton@Illinois.gov to get more information and to certainly look at our website to review the policy recommendations that have been made.

You know, Jennifer mentioned Ruth Bader Ginsburg as having an impact on her life and mine, as well, as a woman, as an attorney, and I know that she said that women belong in all the places where decisions are being made, and yet, even still, even as lieutenant governor, there are still too many rooms that I walk in where I am the only or one of a few.

There are still too many spaces where women are still being interrupted or silenced and ignored, and I think that what we are going to continue to see is that as we bring more women into these spaces where decisions are being made, that we can’t just be there to say, oh, great, I made it to the table. We have to do something when we get at those tables. We have to use our voices to lift up justice and lift up equity and lift up opportunity for all.

We have to scoot over at those tables and make room for other women, other young women and girls, to be at those tables and to make sure that those, especially from marginalized communities, recognize that they deserve to be at those tables, that they are a part of our democracy, and their voice is not diluted, and it is just as powerful, and so I think that we’re going to continue making those spaces. Certainly, right now, you see all of the…you know, we’re still in the midst of COVID-19.

So, as I mentioned before, not only is it women in leadership positions, but I have to acknowledge the women who, from the moment that COVID was…when stay-at-home orders were put in place, the women who, every day, went out to grocery stores and to hospitals and driving buses and so many other ways on the front lines, putting themselves at risk, especially women of color, who our communities have been disproportionately predisposed…

Or we see the racial disparities, not just predisposed, but because of the systemic racism, have a greater risk of dying from COVID-19. So we’re going to keep working on COVID and making sure that as we think about how to protect people, I think that’s at the forefront of everyone’s mind, and then with the racial justice, we are actually doing some work around racial healing and equity and criminal justice reform in our state.

And that will include a focus on women, including the voices of women who are incarcerated, and I led the first-in-the-nation Women’s Correctional Services Act to make sure that we address those unique needs. So we’re going to keep making sure that women are at these tables and that we’re not just at the table again just so someone can check a box, but that we are heard, that we are seen, that we are valued, and that policy is not made for us, but policy is made by us, and that to me is when we will really see the fruits of the ERA come to fruition.

00:45:05 Michele Goodwin:

Well, thank you so very much. It is just an honor to have you on our show, and I hope that you will be able to come back. I know that your team has a busy schedule for you today. So I’m just happy that…

00:45:17 Juliana Stratton:

It’s every day. Every day, but I look forward to coming back, and I’ve enjoyed this conversation, and I look forward to continuing to follow all of you as you continue to do this great work. Thank you, Michele.

00:45:28 Michele Goodwin:

Thank you so much. Thank you. Thank you so much. So I want to open it up to our panel as we begin our last quarter of the show, which is to think about the ERA and whether it goes far enough. So, Julie, as you were writing your book, your book addresses the historical foundations of the movement, and some might say that, well, you know, did the original ERA anticipate equality for LGBTQ persons, right? What would you be your response…and I’d love to open this up to everyone, about whether the ERA, as it’s been reintroduced, whether it actually needs any updates to language to be more explicitly inclusive or does it not because it already hits the mark right where it needs to be?

00:46:20 Dr. Julie Suk:

I think it’s actually a very complicated question as to what the ERA would now mean given its idiosyncratic history as being drafted originally and introduced in 1923, but actually, adopted by Congress in 1972, and then ratified by most of the states through the ‘70s, but completed in the 21st century, because there’ve been a lot of intervening legal developments that have changed points of emphases and goals.

There are some of the goals that were put forth by the proponents of the ERA in the ‘70s that have actually been met by equal protection jurisprudence and others that remain unfinished. So it’s a big, messy question that I think constitutional law scholars are going to have a lot of fun with, but I think this also raises a really important point, which is that the text of the ERA, which refers to equality of rights under the law, shall not be denied or abridged by the United States or by any state on account of sex.

It’s not really clear how those words are going to solve all of the problems that we’ve discussed in the past 45 minutes. As a general matter, when we use terms like under the law by the United States or by any state, we tend to think that it’s just prohibiting sex discrimination by the government, and that’s going to address unequal pay in the civil service and unequal pay in public jobs, but it’s not going to directly address large corporations underpaying women.

It’s not going to directly address many of the sources of the problems that we’ve been talking about for the last 45 minutes, and this is where I think Section 2 of the ERA comes in, which authorizes Congress to enforce, and I think, actually, we also have to be realistic about the ERA that the people have made over generations and then the ERA that lawyers and judges actually enforce, and the reality of the judiciary is that Trump has appointed one-fourth of the federal judges.

The Supreme Court has a composition that I think may have different ideas of what equality means than some of the proponents of the ERA. So what I’ve tried to do with the book is really show, historically, actually, from an originalist perspective, one might say, what the framers and founders of the ERA have said it means and how that’s changed over time, and that’s why I think it’s actually really important not just that we get the ERA, but how we get the ERA…

Because one of the things that have been really powerful about the three most recent ratifications in Nevada, Illinois, and Virginia is that they created floor debates. So if the ‘70s framers did not talk about transgender people, the 21st century ratifiers did. Danica Roem in the Virginia House of Delegates stood up and said the public meaning of the words on account of sex today, of course, include discrimination on account of sexual orientation or gender identity.

https://twitter.com/JoshuaCole/status/1222331057871237121

And it’s that meaning-making opportunity in the context of new ratifications, and also very equally important to this is the congressional process of removing the deadline. Ellie mentioned earlier, and I fully agree with her, that Congress has power to remove the deadline, and I think that path is actually really important because all those women in Congress and all those women of color who have been recently elected stood up and said what it means today. Nancy Pelosi stood up and talked about how pregnant women are not accommodated on the job.

Pregnant women lose their jobs, and that’s a problem of inequality today that should inform what we think the ERA is about, and I think so much of the heavy lifting, though, will not be done by courts. They will be done by lawmakers in Congress and state legislatures in the future, and that was actually part of the original vision of the ERA in 1970 to 1972. When Patsy Mink and Shirley Chisholm advanced the ERA on the House floor, they noted that the all-male Supreme Court had never recognized sex discrimination as a problem, and they said this is not going to be about the Supreme Court.

The Supreme Court can strike down sex discrimination, as it well should, but really, this is going to be about giving political legitimacy to the state legislatures and Congress, making equality real through additional legislation. We’ve talked a lot in the last 45 minutes about disparate impact. The Supreme Court said, in its equal protection cases, that disparate impact is not a Constitutional problem. There will be judges, both on the Lower Courts and in the Supreme Court, who will be tempted to say the same thing when they get an ERA to enforce.

And the only thing that’ll stop them is our creating legislative history now by making clear that we want the ERA to address disparate impact, and that’s really in the hands of the lawmakers of the state legislatures who are continuing to ratify in the 21st century and the members of Congress who will say important things about what this means when they remove the deadline.

00:51:35 Michele Goodwin:

Thank you so much for that. Ellie, did you want to add on?

00:51:39 Ellie Smeal:

Sure. Well, I personally think that, and I testified to this, too, when we were doing the extension, I personally think it does cover gender discrimination, and I think that Gorsuch’s decision, was it in July when he…

00:51:55 Michele Goodwin:

Bostock?

00:51:56 Ellie Smeal:

Yeah, Bostock. That he said it covered trans, LGBT trans community. So I think it does. I also think that, you know, it takes two years to go into effect once it’s enshrined, right? And I think that gives us the chance to study all of the laws in 50 states as well as at the federal level, but not just laws. Policies, and I personally think it will lead to a cleaning up of a lot of laws that are on the books that should not be there and that hold women back.

So I’m very excited about this next stage, and frankly, the ratified Virginia just is going through the states I think right now, and I don’t know if they’re doing a live tour or a virtual tour of law schools, and they want the law schools to start looking at what does this mean for your state, and what laws will fall, and what traditions will fall? And so I say it’s going to be an exciting time. You know, we moved our Feminist Majority headquarters in Virginia because we wanted to ratify Virginia. It took us a little longer than I thought it would, but still, we got it done.

And I can remember, I was president of NOW, and we were buying a house, and it had my then husband’s name on it, and it said et ux, and I said what the heck is et ux, and they said, well, that’s, you know, and wife. I said, well, you don’t even have my first name there, let alone my last name. What are you talking about, you know? And I would’ve sued, but I was so busy, that I didn’t, but I wonder how many more of those et ux laws are on the books somewhere?

They should be all removed, obviously, and I think that…by the way, I think divorce law was a part of all this hesitancy. People don’t say that, but we were bumping into that. We don’t want to give women any more power. What are you talking about? There’s a lot of states where women get the short end of the stick end of divorce settlements. So it’s going to have impact, and I think that it’s going to have impact that will deal with eliminating gender discrimination.

By the way, as this thing about employment, remember, the federal government and the state governments are the largest contractors in the country. Think about that. So, yes, it’ll definitely cover civil service and get rid of discrimination in actual government employment, but how can the government continue to contract with employers that don’t practice eliminating sex discrimination? And I personally think that will be a part of the whole thing.

I do believe it’ll eventually apply to contracts, and contracts are a big deal. I have a definition of big business and small business. Big businesses are those big companies that have the government as their major contractor. Small business, we’re dealing with individuals. I mean, let’s be real. Look at all the big contractors in the United States government. They employ millions of people, and I think it will reach to them. I hope so.

00:55:13 Michele Goodwin:

Well, you’ve given us much to think about. We’ve reached that point in our show where we like to think about silver linings. What comes next? What, out of the process, have you seen that we can say, well, there’s something hopeful to think about, and it turns out that our listeners, this really resonates with our listeners. So I want to start first with you, Jennifer Carroll Foy. Can you tell us about a silver lining that comes out of your fight for the ERA?

00:55:45 Jennifer Carroll Foy:

Absolutely. I think the silver lining that comes out of my fight for the Equal Rights Amendment, I think it starts before that. It starts just seeing injustice. Being a young girl in Petersburg, Virginia, one of the poorest communities in all of the commonwealth, and having to sit at a dining room table when I was young after my grandmother, who raised me, had a stroke and became a quadriplegic, and having to decide if I’m going to pay for our mortgage that month or for her medical bills and her medications that were keeping her alive.

So, because of seeing that and how people aren’t equal, seeing and hearing Justice Ginsburg say that women should be given the opportunity to go to Virginia Military Institute because it’s a laboratory and leadership, that it’s extraordinary schooling experience meant for only extraordinary people, and to say that women can do all things if given the opportunity, and hearing that and realizing in that moment that I was relegated to second class citizenship simply because I was a woman…

And that there has to be people who are willing to blaze trails and break down barriers where they exist and ensure that even though you may be the first, it is your obligation and duty to make sure you’re definitely not the last. So I think all of these things have helped build that great muscle to say, you know, this is bigger than me. It’s bigger than us. It really is about 165 million women and girls who need to reach their full possibilities and potential, but can only do that if we’re all in the game.

So the Equal Rights Amendment has given me, you know, a sword to strike back at injustice and discrimination, and I think that is phenomenal, and now I’m going to use that on a grander scale as the next governor of Virginia to ensure that there’s pay transparency, equal pay for equal work, paid family medical leave, affordable child care, all the things that women need in order to, you know, continue to grow and build and be, like the lieutenant governor said, in the words of Justice Ginsburg, for women to be where all the decisions are being made.

So that’s what the Equal Rights Amendment means to me. That’s what the women on this panel mean to me, and I want to thank everyone for everything that they have done on this fight.

00:58:03 Michele Goodwin:

Thank you so much, delegate. I’m so grateful for your being here and being in the fight, as you mentioned, in the running for governor, too, which is absolutely terrific, and what about you, Julie? Silver lining.

00:58:18 Dr. Julie Suk:

So the silver lining is the long view, and just looking at Jennifer Carroll Foy and Juliana Stratton and Jenn McClellan in Virginia and Pat Spearman in Nevada and Shirley Chisholm and Patsy Mink and Pauli Murray and Justice Ginsburg, the late Justice Ginsburg, that we think of these women as our founding mothers, as founding mothers of the Constitution and that that’s a project…

I mean, if we think about the ERA as one of many amendments, the last time that we actually had an amendment to the Constitution was in 1992, a year before I was old enough to vote. That’s a long time ago. That’s the last century, and that amendment, the 27th Amendment, was written by James Madison, a founding father.

So I do think that completing the ERA, an amazing transgenerational project made by women, will open up a conversation and a possibility so that we can all think of ourselves as Constitution makers and framers and feel that we are included in a Constitution that was made not only by Thomas Jefferson and James Madison and George Washington and Alexander Hamilton, but also by Jennifer Carroll Foy and Pat Spearman and Juliana Stratton and Pauli Murray and Patsy Mink and Martha Griffiths and these generations of women who built, over time, not only the equal rights, but equal power of women in a democracy.

00:59:49 Michele Goodwin:

How powerful is that? And I couldn’t agree with you more. The enterprise of establishing who our founding mothers are and what that would mean for generations to come and how they would understand that is very, very powerful. Women, over time, who are true leaders, not just for their times, but also inspirational for times to come. Ellie, we’ll close with you. Silver lining?

01:00:13 Ellie Smeal:

Silver lining? I think that the struggle for the Equal Rights Amendment helped to build the feminist movement in the United States and frankly, worldwide. The fight for all the new Constitutions to have equality for women in them, and as you know, we’ve been very successful worldwide, but I think that, you know, I’m not sure what the women’s movement would’ve been like without the struggle, but I know one thing, it has helped build this movement.

But it’s time long since that we now start moving to the next step and gaining real power. You know, I looked up while we were talking. We’re still only about 25 percent of Congress, only about 25 to 30 percent of the state legislatures. When we started, we were a few percentages. I don’t know, maybe 2 or 3. Some of the state legislatures that we were fighting with had, if we were lucky, 1 or 2 women in the Senate, 4 maybe, and no African Americans, by the way, in the south.

And so it’s changed, but it’s nowhere near equality yet, and I think the amendment will help us, if it’s realized, to gain not only equality, but respect and the thought that we can do anything, and I want that for the kids of the next generation so badly. That we know that we just got to solve it. It’s just outrageous. So I think 2021 is it, and I can’t wait to see it. I hope we all see it.

01:01:48 Michele Goodwin:

Well, thank you very much. On that note, let’s close out the show with another clip from Representative Shirley Chisholm on January 25, 1972 as she makes the announcement for her run for president on the democratic ticket.

01:02:07 Shirley Chisholm:

Americans all over are demanding a new sensibility, a new philosophy of government from Washington. Instead of sending spies to snoop on participants at Earth Day, I would welcome the efforts of concerned citizens of all ages to stop the abuse of our environment. Instead of watching a football game on television while young people beg for the attention of their president concerning our actions abroad, I would encourage them to speak out, organize for peaceful change, and vote in November.

Instead of blocking efforts to control the huge amounts of money given political candidates by the rich and the powerful, I would provide certain limits on such amounts and encourage all the people of this nation to contribute small sums to the candidates of their choice. Instead of calculating the political costs of this or that policy and of weighing favors of this or that group, depending on whether that group voted for me in 1968, I would remind all Americans at this hour of the words of Abraham Lincoln. A House divided cannot stand.

01:03:34 Michele Goodwin:

Guests and listeners, that’s it for today’s episode of “On the Issues with Michele Goodwin.” I want to thank my guests, Delegate Jennifer Carroll Foy, Ellie Smeal, Lieutenant Governor Juliana Stratton, and Dr. Julie Suk for joining us and being part of this critical and insightful conversation, and to our listeners, I thank you for tuning in for the full story.

We hope you join us again for our next episode where we will be reporting, rebelling, and telling it like it is, with special guests tackling issues related to an extremely relevant issue — beyond marriage, the fight for LGBTQ rights. We’ll be joined by some very special guests, including Professor Jessica Clark, Chase Strangio from the ACLU, T. Mychael Rambo. So please make sure that you’ll join us. This will be an episode you will not want to miss. For more information on what we discussed today, head to MsMagazine.com.

If you believe, as we do, that women’s voices matter, that equality for all persons cannot be delayed, and that rebuilding America, being un-bought and un-bossed, and reclaiming our time are important, then be sure to visit us at Apple Podcasts. Look for us at MsMagazine.com for new content and special episode updates. Rate and subscribe to “On the Issues with Michele Goodwin” in Apple Podcasts, Spotify, iHeartRadio, Google Podcasts, and Stitcher. Let us know what you think about our show, and support independent feminist media.

This has been your host Michele Goodwin reporting, rebelling, and telling it like it is. “On the Issues with Michele Goodwin” is a Ms. Magazine joint production. Kathy Spillar and Michele Goodwin are our executive producers. Our producers for this episode are Maddy Pontz, Roxy Szal and Mariah Lindsay. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and Marsh Allen, and music by Chris J. Lee. Stephanie Wilner provides executive assistance.