Continued Need for the ERA

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.

The ERA is just as needed now as it was when it was first passed in Congress in 1972. It is not just symbolic. The ERA would have a real impact on people’s lives.

The drive to ratify the ERA in the 1970s and 1980s helped to build a vigorous women’s rights movement that made impressive gains for women in education and athletics, employment and credit, reproductive health and rights, and so much more, but these gains have been under constant attack.  Sex discrimination is systemic and cannot be eliminated law by law, state by state.

Attacks by Congress or by state legislatures, however, are only one way in which people can lose protection from sex discrimination. The conservative majority of the Supreme Court has also limited or gutted federal statutes prohibiting sex discrimination, and the late Justice Antonin Scalia, then the “Originalist” leader on the Court, in 2011 stated that nothing in the U.S. Constitution prohibits sex discrimination.

In 2014, the Supreme Court in Burwell v. Hobby Lobby rolled back gains made through the Affordable Care Act (ACA), ruling that closely-held, for-profit corporations could discriminate against women, trans men, and non-binary people by refusing to provide health insurance coverage for FDA-approved contraceptives – a key part of preventive health care – in employee health plans. Those same health care plans could cover medications like Viagra, or procedures. That means that cisgender men, no matter where they work, if their employer offers a health plan, they will have access to comprehensive preventive health insurance coverage, but many women, trans men, and non-binary people may not enjoy a comparable benefit.

The ERA would ensure that prohibiting sex discrimination in the highest law of the land, the U.S. constitution, would not only constitutionally protect the gains we have won, but also give a constitutional basis for proactive legislation and policies that would secure equality going forward. For example, when it was passed in 1994, the Violence Against Women Act (VAWA) made ending gender based violence a national priority and empowered survivors to seek their own justice through a private, civil right of action against perpetrators – even if the state failed to prosecute. That same year, a college survivor attempted to use VAWA to sue her rapist and her university for mishandling her sexual assault claim. The courts prevented her case from moving forward, and the Supreme Court later ruled that Congress had no constitutional authority to enact the VAWA provision that would have authorized her lawsuit. The ERA would give Congress the power to enact this kind of provision, and others, to help prevent gender violence and provide survivors improved access to federal and state Courts.

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