SIEGEL: The issues with the ratification of the ERA

Ratifying the ERA will likely not help achieve equality, and actually could make things worse

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By the deadline, the required count for ratification fell short by three states. Courtesy Wikimedia Commons

The Equal Rights Amendment is a proposed constitutional amendment meant to eliminate any form of discrimination between the sexes. Introduced in 1972, the amendment had a ratification deadline in 1982. By the deadline, the required count for ratification fell short by three states. In the past few weeks, Virginia became the final required state to ratify the amendment. However, because the ratification deadline passed almost forty years ago, the ERA is not law. In effect, the three latest states to ratify it — Illinois, Nevada and Virginia — are suing to have the ERA recognized as the 28th Amendment. With the legal battles won in the past 50 years, an amendment like the ERA has become redundant. 

The first flaw in the ERA is its gender blindness. Women have received benefits that men haven’t in the interest of attempting to bring equality to the sexes. However, with the amendment's passage, programs meant to support women in STEM, in the public arena and in executive positions could be under attack. Already, Yale University was under investigation for seven women-only programs and scholarships for alleged “discrimination against men.” With the ERA, lawsuits against programs meant to elevate women to men’s status could be much more commonplace. Women-only programs in STEM, education, workplace and in executive training could all but disappear. 

In the absence of the ERA, women have won hundreds of important legal battles in pursuit of equality. For example, Supreme Court Justice Ruth Bader Ginsburg — a champion of women’s equality — changed the way women are represented in society. Through over 300 lawsuits, she used the Equal Protection Clause of the Fourteenth Amendment to argue that laws that disciminated on the basis of sex are unconstitutional. Following her lead, the 14th Amendment has been cited in landmark cases legalizing abortion, banning gender discrimination in the hiring process and requiring workplace accomodations. 

The Civil Rights Act of 1964 has also come to encompass women’s rights. Originally, the law was only meant to address racial discrimination, but last minute amendments extended protection to women. Because of this, women have seen massive strides in the workplace and in education. Women now make up 56 percent of all college students, and hold a majority of doctoral degrees in various fields, even though there is severe underrepresentation in STEM fields. Furthermore, while discrimination based on sex persists in the workplace, the pay gap issue has narrowed in the past decades. In 1972, women earned 57.9 percent of what men did, and now earn 81.6 percent. Though there is more work to be done, the ERA won’t help very much. The ability for the 14th Amendment and Civil Rights Act to be applied to women makes the ERA redundant.

A larger issue with the ERA, however, is the state of our current judicial system. Currently, our circuit and appellate courts are packed to the brim with conservative judges — President Trump has already made 50 appointments to appellate courts in the United States. Furthermore, the Supreme Court already has two Trump appointees establishing a conservative majority. While this may seem arbitrary, multiple circuit courts are used by Republican attorneys general as places to push partisan jurisprudence. 

Mark Stern, a legal and courts reporter for Slate, wrote, “the court[s] [have] been newly reshaped by Trump—and quickly got to work translating right-wing priorities into legal doctrine that will govern generations.” The 5th Circuit Court in particular is a target for Republicans to bash LGBTQ+ rights, dismantle healthcare protections and enable xenophobic immigration policy. With the American justice system in such a lopsided balance, legal precedents established on the ERA would last decades to come. Programs like Affirmative Action for women in education and programs to improve women’s status in the workplace would be at risk. 

There is no disputing that there is much to do to promote women’s equality in the workplace. Although women earn 81.6 percent of what men do, these figures get even more unequal when it comes to pregnant women and women with children. Women of color are in an even worse position, and they still face barriers of entry in higher education and in the public arena. However, the ERA will not fix these problems. The ERA’s arcane and outdated language will do little to nothing, considering women have already seen massive legal battles without it. Furthermore, women-only programs in education, business and the public eye would be at risk of disappearing entirely. Ratifying the ERA would open up a new avenue of keeping women where they are now. 

Jeremy Siegel is an Opinion Columnist for The Cavalier Daily. He can be reached at opinion@cavalierdaily.com.

The opinions expressed in this column are not necessarily those of The Cavalier Daily. Columns represent the views of the authors alone.

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