On Account of Sex

Yesterday the Virginia Senate voted in favor of ratifying the Equal Rights Amendment to the U.S. Constitution. If the proposal also clears the much higher hurdle of passage by the House of Delegates, Virginia would be the 38th state to ratify the Amendment, which – ignoring a bunch of complications – means that it would have attained the 3/4 vote needed to become part of the U.S. Constitution.

What the Amendment says:

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.

What does the Amendment do? I’ve found that its significance is profoundly misunderstood by both its proponents and opponents. On the Senate floor yesterday, Sen. Amanda Chase (R-Chesterfield) said that this Amendment would make it illegal to have sex-specific bathrooms, showers, jails and prisons, and other facilities. (I don’t see a realistic basis for this argument.) On the other side, the documentary¬†Equal Means Equal implies that the Amendment would permit employees to sue their employers for discrimination without having to prove intent. (The Constitution constrains only government actors, not private entities.)

In some ways the Amendment is symbolic. Most Americans already believe that women are guaranteed equal rights under the Constitution; they’re not. The Supreme Court has read a certain level of protection into the Fourteenth Amendment, but five justices could erase that. Women also have limited protections in acts of Congress, most notably Title VII of the Civil Rights Act and Title IX of the Education Amendments Act. But courts have construed these statutes conservatively, and they could also be rescinded. So the Amendment provides an explicit protection that currently is on shakier ground.

I think the real value of the Amendment is that it gives Congress greater authority to protect women under federal law. Every federal statute must point to a constitutional provision that gives Congress the power to legislate on that particular issue. While broadly construed, these powers don’t necessarily extend to key areas where women are particularly vulnerable as citizens; part of the federal Violence Against Women Act was held unconstitutional on that basis, for example. The Equal Rights Amendment provides clear authority for Congress to act in areas where state protection is spotty: Domestic abuse, self-defense by battered women, rape kit processing, restorative justice resources, child marriage, health care access, etc.

About those complications, though:

  • After passing the Amendment, Congress set a deadline for ratification by 3/4 of the states. The most recent deadline was 1982, at which point only 35 states had ratified. To make the Amendment official, Congress – including Mitch McConnell’s Senate – would have to pass a new measure to change the deadline.
  • Since 1982, five states have rescinded their ratification of the Amendment. They (or others) would need to re-ratify.

The moral arc of the universe is long.

Photo credit: National Organization for Women, “ERA Rally.” Some rights reserved.

Categories: News

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