The Equal Rights Amendment Still Hasn’t Passed: Jessica Neuwirth On Why That’s a Big Deal
Jessica Neuwirth has spent her career fighting for human rights. She’s worked for Amnesty International and the United Nations Office of Legal Affairs, and taught international human rights at Harvard. She’s also the founder and co-president of the ERA Coalition and a founder of Equality Now, both of which are working toward the Constitutional guarantee that a woman’s rights and protections under the U.S. Constitution are equal to those of a man.
Bioneers spoke to Neuwirth about the history of the Equal Rights Amendment and why pushing toward ratification is still important today.
What is the Equal Rights Amendment? Aren’t all Americans guaranteed equal rights under the law already?
The ERA Coalition commissioned a poll in 2015, and we found what previous polls over decades found: 80% of Americans think that we have equal rights in the Constitution. The first challenge is to close that information gap, because people think we already have it, and we actually don’t. I graduated college in 1982, the year the final deadline for the ERA expired. Anybody a little older than me usually remembers it, and people younger than me have no idea what it is.
As most people know, women got the vote in 1920, and the Constitution was amended. Right after that, a number of the suffragists developed the Equal Rights Amendment because they wanted women to have equal rights in all aspects of life, not just the vote, and felt the Constitution should be amended to reflect that. The ERA was first introduced in Congress in 1923, but it took a long time to build up momentum for it. In 1972, it passed two-thirds of the House, two-thirds of the Senate and was sent to the states for ratification. By 1982, 35 states had ratified the Equal Rights Amendment.
But you need three quarters, or 38 states to ratify, so we were just three states short. By many accounts of activists who worked so hard on this, it literally was just a handful of votes in a few states that made that difference. But the deadline expired, and the Amendment did not get into the Constitution.
Since 1982, it has been introduced in every single session of Congress. But most people don’t even know what it is because it’s never really been publicized. It doesn’t get a lot of visibility. Many congressional representatives sign on as co-sponsors, but it never moves. There’s never been a hearing. There’s never been a vote. It just sits there.
It’s been treated as symbolic and unnecessary, and that’s what we want to change — to make it real and to really try to get it out of Congress and into the Constitution. That’s our goal. In 2017 Nevada voted to ratify the ERA, and in 2018 Illinois followed suit with ratification of the ERA, bringing the number of ratified states to 37, just one state short of the 38 needed. In 2019 Virginia came very close to being this 38th state, failing by just one vote to get the bill passed. Other states including North Carolina, Arizona, Florida and Georgia are all racing to be the 38th state to ratify. These state actions have sparked new momentum in the campaign, and there is a bill in Congress to remove the 1982 deadline. ERA-related developments have been further fueled by the energy of the #MeToo movement, and constitutional equality now seems within our reach.
What does the proposed Equal Rights Amendment actually say?
A very simple sentence constitutes the ERA: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Very hard to disagree with that. It’s simple, straightforward, and I think pretty non-controversial. It was a very bipartisan campaign.
Why do we need it? Well, here are a number of remedies that are not available to women who suffer from various forms of discrimination as a direct result of not having that Constitutional protection.
Many cases have been thrown out by the Supreme Court for failure to have a basis in the Constitution – violence against women cases, other forms of discrimination. As a matter of practical remedy, we really need it.
But I think we also need it as a matter of principle. I think all Americans — and by “all” I mean all women and all men — should want, and most do want, to see the Constitution really embody the human rights basic principles that we all believe in, and the first one is equality. That wasn’t the case when the Constitution was written. We all know that women were intentionally excluded, and that African Americans were intentionally excluded. Fights for those rights have made some progress over time, but they really need to be enshrined in the bedrock of our legal framework. That’s the idea.
Can you share an example of a story that might have had a different outcome if the Equal Rights Amendment been ratified in 1982 or before? Beyond the principle of equality, what would practically change?
There are lots of really tragic stories, but one that is especially timely for us is a story of campus sexual assault from 1994. A young woman named Christy Brzonkala’s story reads like any story that you could read today. As a freshman, she was gang raped by several varsity football players. She went to the school, she went to the state, but she couldn’t get justice.
Right around that time, Senator Joe Biden helped to pass the Violence Against Women Act, which included a provision that allowed access to federal courts for gender-based violence cases. She used that new provision to bring her case against the rapists and against the university. The case went all the way up to the Supreme Court, but it was thrown out. It wasn’t thrown out because it wasn’t gender-based violence. The judges said it fit within the scope of the Violence Against Women Act. The problem, they said, was the Act had no jurisdictional basis in the Constitution. They struck down that part of the Act, which then denied all other women subject to that form of gender-based violence access the federal court system for remedy.
That was in 1994, and I always wonder what would have happened if Christy Brzonkala had been able to prosecute her case and won, and the university had been held responsible. Who knows if that might have started a pattern of cases and a pattern of responsibility that would have helped us avoid what we have now, which is as a total epidemic of campus sexual violence. Because there wouldn’t be this culture of impunity if people could have gone to court and held universities accountable for failing to take action and failing to take these allegations seriously.
Here’s another example. The Supreme Court uses a lower standard to judge sex discrimination than it does for race and religious discrimination. The highest standard of review for race discrimination and religious discrimination cases is called “strict scrutiny,” but when a sex discrimination comes to the Supreme Court they use a lower standard called “intermediate scrutiny.” Why? That’s discrimination in judging discrimination! These layers of discrimination sound legalistic and obscure, but they actually affect the outcome of cases, which affect policies and practices and women’s lives.
Look at the Wal-Mart case, where a class action suit went up to the Supreme Court and was thrown out. The Supreme Court basically said even if workplace discrimination has been proven (by showing that in every single one of the thousands of Wal-Mart stores across the country, women were paid less and promoted more slowly) that evidence wouldn’t be even the tip of the iceberg of what would be needed to prove to make this case work. Why wouldn’t that be enough? If there is a statistical finding of discrimination in every single store for women being promoted more slowly and getting paid less? Why wouldn’t that be even the tip of the iceberg of what is needed? But that’s the way the Supreme Court has looked at these issues.
I have to be honest, when I wrote the book Equal Means Equal, even I was not that aware of the really horrendous things the Supreme Court has said about discrimination against women — and I’m a lawyer. If we put the ERA in the constitution, it covers so many different areas that are each associated with entire movements, like pregnancy discrimination, women in the workplace, gender-based violence, etc. They all come together, because they’re all manifestations of inequality.
When you think about how the law works in conjunction with social change, it’s a synergistic process. A case might push a social agenda forward, or a social revolution might push the law forward. They work hand in hand. I think people don’t see the potential for legal reform to help change things like closing the pay gap or ending gender-based violence. But if you can’t get a legal remedy, then it’s very hard to promote change.
The courts have been closed to many women who have suffered severe forms of discrimination and violence, and that is something that the Equal Rights Amendment would definitely change. It doesn’t mean that the day we have the ERA is the day we get equality, it just means that we’ve established the principle at the highest level of the law, and that has many ramifications. It has practical impact in terms of giving women remedies.
What are the arguments levied against ratifying the Equal Rights Amendment?
I don’t hear any opposition now. What I hear is: “What is the ERA?” People really don’t know what it is, and don’t really know why we need it.
That’s why I wrote the book, just go through some of these cases and show people why the ERA would make a difference. I think what happened is that the women’s movement moved on after 1982 and started to use whatever they could, other litigation tactics short of Constitutional reform, to bring about sex equality. Many laws have been put in place and the 14th Amendment has been stretched to try to incorporate some of the concerns of women.
The first time the 14th Amendment was ever used for discrimination against women was in the 1970s. The Amendment often makes people think we have equal rights. “Oh, equal protection under the law,” but it really has not been very helpful to women. Most of the legal protections women have don’t fall under the 14th Amendment, they fall elsewhere.
Lawyers who have tried to use the 14th Amendment have had some success. There has been progress on the legislative front and through litigation, but we still need the ERA. We want to take this moment of opportunity to kick it across the finish line because there’s no substitute for a Constitutional amendment. Whatever great legislation we have is riddled with loopholes, has been gutted by court interpretation, and can be rolled back any time a new Congress comes into office. We want something more permanent, and a Constitutional amendment would be that.
How does the situation in the United States compare to the situation for equal rights for women in other countries?
Most of my work prior to founding the ERA Coalition has been in the international women’s rights field, and a few years ago I started Donor Direct Action, a project of the Sisterhood is Global Institute working to strengthen front line women’s groups in countries such as Afghanistan, the Congo and Somalia. We’re very lucky to have Robin Morgan, its founder, and Gloria Steinem on our board and to have their vision of feminist solidarity — a global vision, really.
People often think we’re in much better shape from the point of view of gender equality than a lot of other countries, yet so many have elected women heads of state, and a long time ago. Countries like Rwanda have 50% women in Parliament, while we’re only at about 25%, which is the highest it’s ever been.
From the ERA point of view, many countries have equality provisions in their Constitution. It’s very, very common. In fact, U.S. foreign policy has strong-armed countries such as Iraq and Afghanistan into putting the exact same ERA provision in their constitutions. We diplomatically support countries that put quotas in for 33%, and we can’t even do 20% here. It’s very hypocritical. Women in other countries are often very surprised to find out that we don’t have these protections.
We are behind in many ways. Of course, not all ways, but I think most women and men would acknowledge we don’t have equality in this country. So many statistics tell us women make 79 cents on the dollar for every man makes, and less for Black and Hispanic women, 64 and 54 cents on the dollar, respectively. That’s not equality. Everybody knows we don’t have equal pay. Everybody knows we suffer from gender-based violence. There’s a lot of pregnancy discrimination. There are so many different forms of discrimination, so I think people know we don’t have equality.
For some further perspective, CEDAW is the Convention on the Elimination of all Forms of Discrimination Against Women or (in more user-friendly terminology) the International Bill of Rights for Women. It’s a United Nations treaty, and every country in the world has signed and ratified it except for Sudan, South Sudan, Somalia, Iran, Tonga, Palau and the United States. Those of us who have worked in the international women’s right movement are ashamed that our country has not signed on to this treaty that everybody else in the world accepts.
The treaty has quite a lot of provisions in it, and most of them are really very straightforward. One that has drawn some attention is the requirement to give women paid maternity leave. Every country in the world gives women paid maternity leave except four: Swaziland, Lesotho, Papua New Guinea and the United States of America
I can’t really defend that in any way, but that’s the status of it.
What can people do, today, to help push this along?
Anyone can go on our website, ERACoalition.org, and click on “advocacy”, find a map of the country, put in their zip code or click on their state, and see exactly who in Congress supports the ERA and who doesn’t. With one other click, they can write to that Congressperson.
That really, really helps, because our biggest problem is that none of these representatives have been hearing about the ERA. The moment they do hear about it, they sign onto it because they really have no reason not to. It’s just not something they’ve thought about or think is important to their constituents.
This what we want to change, and we’re using our website as an advocacy tool to really try and build the pressure we need to finally pass the ERA.
Learn more about the Equal Rights Amendment and the issues surrounding in a recent episode of Bioneers Radio with Jessica Neuwirth, Joan Blades and Kimberle Crenshaw.