The Equal Rights Amendment has now been ratified by enough states to become law, but that doesn’t mean it will

Protesters at the Los Angeles Women’s March in 2018. Morgan Lieberman/Anadolu Agency/Getty Images
  • The Equal Rights Amendment has now been ratified by more than 75% of states, which is the minimum threshold for it to become law.
  • Conservatives, including President Donald Trump’s Department of Justice, are expected to put up a fight against the amendment, having already said it’s dead on arrival.
  • Equal-rights advocates, on the other hand, say they will continue to seek justice and fairness.
  • Visit Insider’s homepage for more stories.

Ninety-six years after the Equal Rights Amendment (ERA) was penned, the bill has another serious chance of becoming law.

On Monday, the Virginia legislature – overseen by women in both the House of Delegates and the Senate – completed its ratification of measure, becoming the 38th state to do so. The occasion is critical for the passage of the ERA, which must be ratified by at least 75% of states before it can become law.

But the pursuit of formal equality regardless of sex, which the ERA would establish, is far from guaranteed. As the amendment goes to Congress, advocates are wary of Republicans’ strong grip on the courts and the Senate. And conservatives are expected to put up a fight.

“We’re very prepared for this battle. We’ve known it’s been coming,” said Ellie Smeal, a co-founder of the Feminist Majority Foundation. “Nothing’s been easy.”

Opponents of the equal-rights measure seek to block the amendment with a legal mechanism that progressives believe is a red herring: a deadline.

Congress initially passed the amendment in 1972 and handed it down to the states to ratify, imposing a 1982 ratification deadline to sign on. But when the deadline arrived, fewer than 75% of states had formally approved the amendment. The minimum threshold of support for the ERA was not met.

In early January, the Department of Justice invoked the foregone deadline, saying, “the ERA Resolution is no longer pending before the States.”

But the deadline is not relevant to the matter at hand, according to equal-rights advocates. The deadline is not in the actual text of the amendment, only the preamble. “Our attorneys, who are constitutional experts, think it would be nice if they removed the deadline,” Smeal said. “But they don’t believe it’s necessary. It’s not binding because it’s in the preamble.”

Conservative legal operatives have already geared up for a judicial attack. State attorneys general from Alabama, South Dakota, and Louisiana recently mounted a joint legal challenge at the federal level to stop the ERA on the grounds that new ratification violates the terms of the original deadline.

But three other states – Nevada, Illinois, and Virginia – have also taken to the courts, fighting to ensure that their recent ratifications are legitimated.

“If Congress wants to pass an updated version of the ERA, taking into consideration all the changes in the law since 1972, I have no doubt the South Dakota Legislature would debate the merits in a new ratification process,” South Dakota Attorney General Jason Ravnsborg said in a press release.

Others have concerns about the amendment that extend beyond procedures.

The idea that the ERA is about giving women their rights is “deceptive,” according to Toni DeLancey, chief operating officer of Concerned Women for America. “It’s using the words ‘equal rights’ in a deceptive way. We already have equal rights.”

DeLancey added that the ERA will “roll back the clock on biological women’s rights.”

ERA advocates are frustrated by the skirmish over equal rights. “You’d think it would be easy in 2020,” Smeal told Insider, “but the laws have been discriminatory.”

A 2019 Pew Research Centre survey found that US women are still only earning 85% of what men earn and that gap is even wider for women of colour.

The United States ranks poorly in terms of gender equality. A2019 World Economic Forum report ranked the US 53rd globally for gender equality, a decline from its 2018 spot at 51st place.

Even in light of gender inequity, a majority of Americans support the ERA, according to a 2019 YouGov poll. Among Democrats, support hits 87%, while 53% of Republicans support the amendment.

The looming fight between equal-rights advocates and conservatives is impossible to predict. But even if the current administration and its bedfellows get their way, advocates will not be dismayed, said Heather Barr, director of the women’s rights program at Human Rights Watch.

“Even if the Trump administration is able to block the ERA from going forward, and even if there is a court challenge that is unsuccessful, this is part of a broader global movement that is unwilling to put up with entrenched discrimination,” Barr said.

“This is one battle in a much larger site.”