Honor Women's History Month by ratifying Equal Rights Amendment

Honor Women's History Month by ratifying Equal Rights Amendment
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Every March, we evoke the names of fearless suffragists like Susan B. Anthony, Alice Paul and Cady Stanton and intrepid feminists Gloria Steinem, Betty Friedan and Ellie Smeal and other social-political advocates. But paying homage in retrospect, by definition, never signals the next milestone for any movement. The most respect we can devote is to finish what they started by ratifying the Equal Rights Amendment in the U.S. Constitution.

“Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.” So far 37, states have ratified the ERA. In 2019, the historic 38th was expected to involve either Virginia or Arizona’s State legislatures to no avail. How will gender equality fare in North Carolina, South Carolina, Georgia and elsewhere?

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The Constitution is silent on the topic of equality based on sex, in contrast to the constitutions or equivalent charters of many other developed countries. In 1979, the United Nations adopted the Convention on the Elimination of Discrimination against Women, aka CEDAW, absent the United States.

What difference would the ERA make? Its ratification will reduce the power of the government to discriminate on the basis of sex. Courts do not judge laws that discriminate based on sex with the same scrutiny that they judge laws that discriminate based on race or nationality. The ERA would offer a wider and more permanent shield, enshrining fairness into the Constitution and providing a strong legal defense against bias centered on gender.

So, who are the winners and losers in the fight to ratify the Equal Rights Amendment? There are no losers. The biggest winners, of course, will be the 51 percent of our population: women. And, the Equal Rights Amendment does not compromise men’s equality. Gender equality adds to existing fairness with parity for women. Ratification will not eliminate the differences between the sexes, but it will ensure that government actions are based on compelling reasons instead of sweeping generalizations about the sexes. If the ERA fails, then we all suffer.

However, during the past 50 years, social conservatives have spread brazen, unsubstantiated misinformation about gender equality for women. It’s a mystery why partisans deride the ERA and condemn that women’s rights will change their lives, and not for the better. Some opponents even claim that the ERA would challenge the family unit or “traditional” gender roles. On average, gender equality adversaries stem from “family values” followers who hold a sincere religious acceptance promoting men's domination over women.

Foes other central and mistaken arguments portray the ERA as a Trojan horse that would mandate abortions “on demand.” That is simply false. Abortion access is already legal in the United States, and the ERA would not alter that or change the existing Constitutional framework under Roe v. Wadewhich is grounded in constitutional privacy rights not sex equality. The ERA also will not require states to pay for abortions any more than current law does, e.g., if a state pays for all “medically necessary” procedures except for abortion, it may be required to pay for “medically necessary” abortions. In the states that have equal rights amendments, none require abortions on demand. There is no reason to think that the ERA will be any different. 

What the ERA would do is to protect pregnant women from being treated differently from men in leave policies, reasonable accommodations and job protection. It also would provide a legal basis for challenging policies that provide for different pay for men and women. Others fear the ERA would end social security benefits for wives and widows. Wrong. That argument is based on an outdated reading of the provisions of the Social Security Act and a misconception about the impact current provisions have on women.

ERA foes falsely propagandize that passage of the ERA would subject women to the draft and compel them to serve in combat roles. Again, wrong. It would not be the ERA, but Congress, that has reserved the right to draft women as nothing in the Constitution prohibits amending the Military Selective Service Act to require women to register for the draft. Congress has chosen, however, not to exercise its discretion not to draft women. The Defense Department has recently opened combat positions formerly closed to women. Passage of a federal ERA could test the constitutionality of the male-only registration requirement of the Military Selective Services Act if Congress does not act.

Phyllis Schlafly, a traditional-values reactionary, once framed her anxiety as a matter of bathroom safety. She alarmed women that the ERA would permit rapists to prowl public toilets for victims and that gender equality would compromise a “sanctuary of privacy and safety.” That led to a slippery slope for social conservatives who repugnantly stoked fears of being forced to share restrooms with gay and transgender individuals. Existing caselaw and mores have changed since then and transgender persons can use bathrooms on the basis of their gender identity and not the sex assigned to them at birth.

While our Founding Fathers considered the elective process part and parcel to America becoming a constitutional republic and ascending to the “more perfect Union” they sought to create, voting rights have a notorious past. Initially, voting was restricted to property-owning white men. Ratification of the 15th Amendment in 1870 permitted voting rights for men of all races — but didn’t extend that right to women until the1920 ratification of the 19th Amendment.

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Without ambiguity, women and men are equally justified to be protected by the Rule of Law. Undeniably, the ERA must identify “women” and “men” by writing both genders in the U.S. Constitution. Only then will ratification of the Equal Rights Amendment afford women all the civil liberties, freedoms and responsibilities that the Constitution provides men. I can’t imagine any parent believing that their daughters are not equal to their sons.

In 2019, another legal and social crossroads looms for the United States where gender discrimination endures unabated. Would strict constructionism support ERA ratification? A narrow reading of the U.S. Constitution could demand that we right an omission from the 1700s. The late Supreme Court icon of conservative jurisprudence Justice Antonin Scalia said in 2011: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”

Winsome McIntosh is the president of the McIntosh Foundation, which for 50 years, has dedicated itself to establishing the legal strategies and philanthropy needed to bring about systemic, societal change.