Update: On 28 February, 2023, the US Court of Appeals for the District of Columbia Circuit issued its disappointing decision finding that, “… the States have not clearly and indisputably shown that the Archivist had a duty to certify and publish the ERA or that Congress lacked the authority to place a time limit in the proposing clause of the ERA.” It’s clearer than ever that Congress should act now.
In a historic move, on the eve of Women’s History Month, on February 28th at 10:00 am EST, the United States Senate Judiciary Committee will hold a hearing about the Equal Rights Amendment (ERA). Specifically, the hearing is to discuss a simple resolution S.J. Res, 4 that would, if passed, declare that the ERA, having been ratified by the required number of states, is already valid and in effect. This is the first time in over a decade that the Senate has had a hearing about the ERA.
Let’s recap, what is the ERA?
85% of UN Member States in the world have constitutions that prohibit discrimination on the basis of sex and/or gender. The United States is not one of them.
For more than a century, feminists have realized that this omission presents a major barrier to achieving true gender equality in the United States, and that’s why Alice Paul drafted the Equal Rights Amendment (ERA) in 1923:
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.
But despite meeting all constitutional requirements necessary to become the 28th amendment, including ratification by 38 states, the ERA has yet to be added to the United States Constitution.
Why does this hearing matter?
The hearing, which is the first by the Senate in a long time about the ERA, could be the first step toward the United States legislature fully enacting the Equal Rights Amendment into the US Constitution.
Previously, members of Congress have presented bills to eliminate the deadline for ratification of the Equal Rights Amendment, the deadline having been seen as a barrier to its incorporation into the Constitution. These bills have not passed both houses of Congress.
There is also a legal case pending between the Attorneys General of two states – Nevada and Illinois – against the United States Archivist, whose job it is to record new fully ratified amendments to the US Constitution and republish the Constitution with the updated text when an amendment is added. Because the Archivist, following a guidance memo from the Department of Justice in 2020, did not do this after the final three states out of the required 38 ratified the ERA, these two of the three most recent states to ratify it are suing the archivist. However, this case is still in the appeals process and has not been fully resolved.
The current Administration has indicated that although they support constitutional equality, they believe that the validity of the Equal Rights Amendment should be left to the legislature. Therefore, at this time, a new solution through the legislature is the clearest path to the Equal Rights Amendment being considered in full effect.
What happens after the hearing?
If, after the hearing, the Senate Judiciary Committee members agree that the resolution should be put to the vote, the next step would be bringing the vote to the floor of the Senate. If the Senate passes the resolution, the House of Representatives would then debate and vote on a similar resolution, H.J. Res. 25, that is being proposed in that body. If both resolutions are passed, then the Equal Rights Amendment would be considered in effect according to both houses of Congress.
Given that the executive branch has said they would like to leave this matter up to the legislature, the Department of Justice should then drop its support for the Archivist in the pending legal case, and the Archivist would be compelled to publish the updated Constitution.
If all these things happened, it would be safe to say that the Equal Rights Amendment would be in effect. This doesn’t mean, however, that constitutional rights would immediately be equally respected across the United States. There would still be a need for existing state and federal laws to be updated in order to be in line with this new Amendment, and there would be legal cases to test the constitutionality of gender discriminatory laws and the application of laws in the United States.
Nevertheless, it would mean that the United States would finally join a majority of countries around the world in enshrining equality in its Constitution and everyone would be better protected from gender-based violence and discrimination.
Why should I care about the ERA anyway?
A lack of constitutional equality affects people of all genders. From pay discrimination to gender-based violence to problems regarding family law, protecting gender equality at the level of the Constitution is essential to guaranteeing equal rights for all.
In 2022 we launched our #WeNeedTheERA campaign, outlining some of the key reasons that people across the United States need the ERA. These include access to sexual and reproductive rights, preventing child marriage, preventing sexual and gender-based violence, and protecting bodily integrity and autonomy from harmful practices such as female genital mutilation.
What is Equality Now doing to secure constitutional equality in the United States?
Equality Now has campaigned for the Equal Rights Amendment for many years, mobilizing our supporters and our network of legal experts to push for its incorporation into the U.S. Constitution.
As an active member and partner in the ERA Coalition, we have brought our international expertise to bear by submitting amicus briefs in support of the state Attorneys General in each stage of the ongoing court case against the Archivist. The amicus briefs assert that the vast majority of countries around the world recognize the concrete and particularized harm arising from sex inequality and the need for express constitutional guarantees of equality on the basis of sex; the US is required to adopt the ERA to comply with its treaty commitments; and the US should adopt the ERA to comply with international law and human rights standards.
Our #WeNeedTheERA campaign takes a closer look at how the ERA would help move the needle on four crucial issues for women and girls, including abortion, child marriage, gender-based violence, and female genital mutilation