If you haven’t heard yet, Virginia made history last month by becoming the 38th state to ratify the Equal Rights Amendment—marking a watershed moment of progress in the 97-year fight to add protections on the basis of sex to the U.S. Constitution. The ERA is a simple amendment, reading, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex,” yet it has faced a long uphill battle for ratification since suffragette Alice Paul’s original amendment proposal in 1923.
After decades of activism just to get the ERA on the floor, Congress finally passed the amendment in 1972. Then it was off to the states: 35 of the 38 states needed quickly ratified the ERA and, for a moment, the ERA’s full ratification seemed inevitable. However, concerted organizing by hyper-conservative groups stalled pro-ERA efforts. In 1977, Indiana became the final state to ratify before the ERA’s congressionally-imposed 1982 deadline passed. But as 2020 Virginia proves, the ERA is far from dead–rather, the real fight has just begun. In an era marked by more progressive and intersectional understandings and practices of feminism, passing the Equal Rights Amendment once and for all is more important now than ever—especially for college students.
The Trump administration has made its goals incredibly clear: over the past few years, policymakers have pushed for more and more draconian laws and regulations. Since 2017, the Department of Education (DOE) has chipped away at Title IX protections against sexual assault and harassment: under Education Secretary Betsy DeVos, the DOE has introduced higher standards of evidence and a stricter definition of sexual harassment that make it significantly more difficult to hold assailants and institutions accountable. These anti-survivor policies have come amidst staffing cuts to the DOE’s Office for Civil Rights, which is in charge of investigating sexual violence cases. Simultaneously, the DOE rescinded more than twenty Obama-era policy guidelines on anti-discrimination law; DeVos axed policies protecting transgender students from discrimination, including those that allowed trans students to use gender-segregated facilities consistent with their gender identity.
I believe the textual reading of the amendment does apply to sexual orientation and gender identity.
Kathleen Sullivan
Whether the ERA applies to transgender students is a debate in itself, hinging on the interpretation of the word “sex” as included in the ERA’s text. As VA Ratify ERA points out, “in the context of civil rights cases, a majority of the circuit courts that have interpreted ‘sex’ concluded that the proscription against sex discrimination prohibits discrimination on the basis of transitioning or transgender status.” In interpreting the ERA’s reach, there’s a very serious possibility that judges would extend current precedence regarding “sex” discrimination under Title IX towards interpretations of the ERA. Supreme Court cases like Price Waterhouse v. Hopkins, Equal Employment Opportunity Commission rulings and guidelines, and lower court cases like Glenn v. Brumby, which ruled that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination,” could all impact how judges interpret the word “sex.”
However, advocates like Virginia State Delegate Danica Roem and human rights attorney Kate Kelly argue that “[the ERA] holds ample potential to protect all marginalized genders—binary and non-binary alike—and sexual minorities.” In their piece for TeenVogue, Roem and Kelly emphasize that “this also includes people of color, who, like Delegate Jennifer Carroll Foy, are leading the way on the ERA. And, yes, ERA advocates do want the amendment to apply to everyone: trans women and non-binary people included. This is not a minus; it’s a major plus. Equal means equal. Period.” Other ERA advocates, including former Dean of Stanford Law School Kathleen Sullivan, agree. In her April testimony to the House Judiciary Committee, the noted constitutional scholar argued in favor of the wider interpretation of “sex”.
The permanence and symbolism of a constitutional amendment is immense. With equality among sexes enshrined in the constitution, women and other marginalized people may be more comfortable speaking out against pay disparity, harassment, and sexual assault. Furthermore, the ERA would open more legal avenues—that are not subjected to the whims of one administration or Congress to the next—for those fighting back against discriminatory policies. The ERA will also likely pressure policymakers and enforcers, including universities, to take action on issues like sexual assault. As former NOW president Catherine O’Neill argued in 2017, “[The ERA] is a reason for lawmakers to put more resources into Title IX enforcement, to allow Title IX to grow and be available to all the different types of girls and women seeking an equal educational opportunity in whatever situation they find themselves.”
It’s important to recognize that the ERA will not fix all of our gender inequality woes overnight; it also isn’t a be-all end-all solution to the gender-based violence embedded into American culture. It is, however, a concrete step towards true gender equity—both on our campuses and beyond.
