Why was the ERA not ratified during the original time frame?
Mary Frances Berry: While a federal constitutional amendment seemed a logical next step to Alice Paul and her party, it was not to those who wanted women to have the right to vote but did not want men and women to be treated equally in other cases. There was little discussion on the principle of the equality of rights and much on whether the ERA would violate traditional family values. The factors of time, demonstrating necessity, regional and state diversity as elements in gaining consensus in the states, the positive influence of negative Supreme Court decisions, and the expectation of disinformation spread by the opponents all helped to stall the Equal Rights Amendment.
At the same time, ERA proponents failed to convince a majority of women in enough states that the amendment was essential to their equal rights while dispelling fears that the ERA would make other changes in their lives that they did not desire. ERA supporters need an effective public relations approach, which can build a sense of necessity that the Constitution would be perfected by including the principle of equality of rights for women as an essential component of republican government in a democratic society.
Many of the reactionary social issues Schlafly raised as negative consequences of the ERA in the 1970s have already come to pass: same-sex marriage, women in the military, and all-gender restrooms. What does this say about how society influences legislation and vice versa?
Berry: Every single one of those changes noted came about because of social movement pressure, which changed the narrative as well as public perception of what women should do and men should do. Many of the traditional ideas were no longer relevant, for example when people realized that we have all-gender restrooms on airplanes. The way society has changed, women are in the workplace and many women work because they have to, including women with families. If someone like Phyllis Schlafly started to raise these issues again, they would most likely not seem as relevant as it did then.
If the ERA is ratified and goes to the Supreme Court, what will that look like?
Berry: If the ERA is ratified, and I think it will be, then there will be a legal dispute. Many of the people who would have been opposed to it have gone on to other battles. There still are some issues about women and families—homeschooling, for example—that are still there. The entire issue is not gone, but it’s not major. It may just be that the opposition will roll over and play dead, but I’m sure someone will raise the issue regarding the extension, the time passed, and whether or not the rescissions are valid. If the Court decides against the ERA’s validity, the people who want it would have to start all over again.
Maria Murphy: I imagine it's going to be a fight on the grounds of what constitutes ‘sex’ and how sex is defined. Beyond getting the ERA ratified and officially integrated as a constitutional amendment, I think the aftermath, when the amendment is tested and taken up in courts, will really determine how sex is understood and misunderstood.
How will the ERA affect trans and non-cisgendered people?
Murphy: From my understanding, the language of the ERA is rather vague, and although people generally assume that sex-based discrimination refers to women, the words ‘woman’ or ‘women’ do not appear in the principal clause of the ERA. That ‘sex’ is the operative term opens up possibilities for how the ERA might afford protections to trans and nonbinary folks and speak more generally to extending protections for people who are gender-nonconforming in any number of ways. Although I think it is difficult to predict the impact of the ERA on non-cis people at this stage, before it's been ratified, I believe its potential ratification will open doors to expanding equal rights protections in ways that Alice Paul probably did not/could not have imagined and perhaps in ways we cannot either.
What do you foresee as the biggest consequence of a ratified equal rights amendment? How would the proposed amendment affect our lives or not?
Berry: The overall consequences would not be as great as if the amendment were ratified originally. One possible change is that the Supreme Court might be more willing to have a vote based on ending gender discrimination if we had an amendment in the Constitution, which is stronger than interpreting statutes.
There might be a long debate about whether the ERA includes sexual orientation. Currently, you can have a same-sex marriage but have no right to nondiscrimination in your place of employment. When the ERA was originally before Congress, no one was discussing how sexual orientation would influence what happened. Now, it is likely to be something that is raised.
Some people have suggested that an ERA might mean we have greater access to child care, but I’m not sure that’s right. I’m not sure some automatic glow will suffuse the environment, but I think in the long term it should have some positive effects.
Kathleen M. Brown: Like all constitutional amendments, the ERA provides a firmer ground for women’s equality than Title VII of the 1964 Civil Rights Act, prohibiting discrimination against employees in workplaces with more than 15 employees and Title IX of the Educational Amendments Act of 1972, prohibiting discrimination within educational institutions receiving federal funding. Workplaces with fewer than 15 employees and institutions that receive no federal funding can evade the requirements of Title VII and Title IX. As articles of legislative acts, moreover, Title VII and Title IX can more easily be overturned than the provisions of a constitutional amendment.
In theory, the ERA could provide protections for transgender people’s equal access to the law, due process, and privacy in much the same way that attorneys are currently attempting to use the existing Title IX protections against sex discrimination to protect transgender people from the harms of discrimination.
How will this moment be taught in future history courses?
Murphy: Often, when students encounter societal change through a historical lens with watershed moments like this, the narrative can privilege stories that imply progress is won primarily through governmental and legal avenues. But in many ways, activists and community organizers have been chipping away at discriminatory practices in the work force, for example, and building in protections on the basis of sex in other creative ways, often outside of legal/governmental frameworks. Having the ERA ratified and integrated into the Constitution would commemorate over 100 years of activism and alternative methods of effecting change.
Brown: I was a young person when the ERA’s ratification was defeated, and I assumed that this was the end of the ERA. During the intervening decades, social justice activists and their attorneys have found strategies for working around the lack of constitutional protection for gender equality. Some of these, including the interpretations of Title IX of the Educational Amendments Act of 1972, are still proving useful in the present day in arguments to end the discriminations suffered by transgender people. These legal strategies are important and have been effective, but they cannot take the place of a constitutional amendment.
When I teach students about the defeat of the ERA, they are often shocked. They think they are living in a world with an equal rights amendment already on the books, and they are shocked to learn that the main protection against sex and gender discrimination is an easily overturned legislative act.
