Although Americans often see their society as one that is pushing forward toward equality, the structure of their government has a different opinion. There is nothing in the Constitution or the Bill of Rights to suggest that women can receive equal protection under the law when compared to men. The only way to provide this equality would be to create an amendment that would provide language supporting this need.
That is what the Equal Rights Amendment would provide if it were to pass all of the legal steps necessary to turn it into law. According to The New York Times, up to 80% of people in the United States believe that men and women are guaranteed equal rights. The only right that is equal according to the Constitution in its current format for both genders is the right to vote.
The language of the reworded version of this amendment from 1972 is simple and straightforward. Section 1 provides equality of rights on account of sex. Section 2 gives Congress the power to enforce through legislation the provisions of the article. Section 3 then declares that there is a two-year waiting period after ratification.
This proposed amendment would guarantee equal legal rights for all American citizens. It would also require each state to intervene when there is an issue involving gender violence, such as sexual harassment or domestic violence. It would provide protections against motherhood or pregnancy discrimination while also mandating equal pay in every industry.
Some might say that the 14th Amendment makes this effort unnecessary, but the pros and cons of the Equal Rights Amendment seems to suggest otherwise.
1. Congress can overrule the deadlines that were originally in place.
Nevada decided to become the 36th state to ratify the amendment in 2017, even though the “deadline” for such an action came and went 35 years ago. The effort was spearheaded by a locate state senator named Pat Spearman. Then other states began to realize that they could do the same thing. Illinois decided to ratify the amendment in 2018. Virginia almost did as well until progress stalled in their House.
That means a total of 37 states at this stage in history have ratified the Equal Rights Amendment. If one more would do so, then the only barrier to its inclusion in the law would be to overturn or repeal the 1982 deadline that was originally mandated for this idea.
2. There are five states who have introduced ratification of the amendment in their legislatures.
Bills that would allow their state to support ratification of the Equal Rights Amendment have been introduced in Arizona, Florida, North Carolina, and Utah in addition to Virginia. Any one of these legislatures could decide that they will become the 38th state to ratify the amendment. Although the idea of equal protection cannot move forward from a Constitutional standpoint until one of these states completes the process, the renewed interest in ensuring that all genders have the same equal protections under the law is an advantage that is worth talking about to many people.
3. It would offer equal rights to both genders.
Every person identifying as a male or female in the United States would receive the guaranteed legal rights and protections of the Constitution if the Equal Rights Amendment were to be fully ratified. That means all civil, human, and diplomatic rights would be included with its passage as well. This process would provide clarification to court rulings that are related to discrimination based on gender, allow for the creation of protective laws, and make it possible for most people to do something about discrimination against them if they encounter it at home, in public, or while they are at work.
4. The Equal Rights Amendment would remove laws that discriminate against gender.
By incorporating this amendment into the governing documents of the United States, it would effectively neutralize any of the lingering gender discrimination laws that are lingering on the books of states across the country. Although Title VII prohibits discrimination against gender in hiring decisions, it does not resolve issues with the pay gap or inequality with how enforcement occurs. Passing this will not change the hearts and minds of people, but it will create a structure in society that enforces compliance with the idea of being equal in the first place.
5. It could help with future corporate recruitment needs.
We already know that when employers have robust equal employment opportunity policies that they are typically able to attract a diverse set of qualified applicants for their open positions. Job seekers often promote the best opportunities to get people into the best positions while avoiding those who use biased hiring practices. We already accept the general structure of the what the ERA offers as an amendment through an informal set of rules most of tend to follow.
Passing the Equal Rights Amendment would formalize these structures, allowing the best companies to continue recruiting in diverse ways while putting those with biases that they do not want to work on out of business eventually.
6. The ERA could reduce issues with workplace conflict that exist.
We also know that there are fewer incidents of workplace conflict when employers decide to stand firm on the equal employment opportunity policies that provide a guideline for fair treatment already. Many of these issues are attributed to a general lack of understanding about what constitutes a fair workplace practice or the ethics behind such a decision. With the passages of this amendment, it would no longer be the responsibility of HR departments to provide the necessary training to create a respect for cultural and gender differences. It would be a process that the Constitution guarantees is available for people of both primary sexes.
7. There would be a reduction in risk management costs with ERA passage.
When there are fewer issues with workplace conflict that organizations must face on a regular basis, then there are fewer costs to manage from complaint resolution or litigation. There would be reduced fees for legal expenses and the associated costs which are necessary to defend employment actions that may be seen by some as being discriminatory. When there is reduced staff time on investigations because the ERA covers the problems on its own instead of requiring an extensive set of regulations, then it becomes more of a legal issue than a civil one, which can further reduce costs, improve productivity, and encourage a positive environment.
8. It could boost the morale of the entire country.
Even when companies offer strong EEO policies to support their employees, there is a general sense of wellbeing that permeates through the workplace. People are more excited to go to work when they know that their employer wants to do the right thing. That benefit would percolate throughout the rest of society if the Equal Rights Amendment were to pass, even with the language it contains that some might describe as “murky.”
When there is this added positivity in the workplace, there is typically less turnover that occurs for that employer. The number of voluntary resignations in protest of unfair policies decreases. If the idea of social responsibility goes nationwide, then most businesses could see a boost from this advantage that endures.
9. The ERA could help the United States have an improved reputation with the world.
Although there will always be people, companies, and governments that do not support the idea of equal gender rights, these groups are in the minority. We have already seen that a business with a strong EEO policy becomes a well-regarded leader of their industry. When there is a commitment to the fair and equal treatment of all people, then they typically see a boost in positive perception. The same benefit would likely occur if the United States were to pass this amendment that guarantees equal rights for women in all aspects of society.
10. It could help to enshrine transgender, non-binary, and other gender-identification rights into the Constitution.
The purpose of the ERA was to provide women with an equal opportunity to receive the guaranteed rights that men already receive. Because the 1972 version of the legislation uses “sex” instead of gender, there is a clear possibility that the judicial system in the United States would define that term as “orientation” instead of “gender.” That would help those in the LGBTQIA+ community be able to push for equal rights, including individuals who identify using other gender definitions. It could even formalize the right for same-gender couples to marry, authorize non-traditional gender marriages, and then apply the same rules to this orientation that we currently observe on race.
11. It would continue the precedent set by 20 states who have passed this legislation.
Although the Equal Rights Amendment has failed to garner enough support to pass so far, there have been 20 states since 1979 which adopted state-level guidelines that are equal to or greater than what the federal amendment would provide. Instead of having a hodge-podge of different laws that people would need to follow to guarantee the rights of women and others, the Constitution would provide an opportunity for everyone to explore their journey toward happiness.
12. The ERA could eliminate discrimination in funding for specific medcial services.
The Supreme Court in New Mexico ruled that their version of the Equal Rights Amendment made it unconstitutional to restrict the funding of medically necessary abortions because the program doesn’t apply the same standard of necessity to both primary genders. Connecticut has struck down abortion provisions in the law using the ERA as well because discrimination against pregnancy by not funding abortion when it is medically necessary can also be a form of discrimination that would disappear with passage of a nationwide amendment.
13. It would allow more resources to reach children.
Women in the United States typically have more control over the family resources compared to men. Their spending patterns are usually structured in such a way that they benefit their children the most. When there have been gains in the U.S. in the educational opportunities and healthcare access for women, then it provides a corresponding boost in the outcomes which children can obtain as well. If we can improve the lives of our young people, then it improves our future prospects for growth.
14. The Equal Rights Amendment could improve the quality of family planning decisions.
When women are given the power to make decisions about when to have children, then the quality of life for her family improves. Having kids born less than two years apart means that the second child faces twice the risk of dying in the first year of life compared to children who are born further apart. Being able to spread out pregnancies also creates fewer issues with breastfeeding, which plays a crucial role in childhood development during the formative years.
15. It could create higher levels of economic growth for the United States.
Empowering women to become active in their community will boost productivity levels every time. McKinsey suggests that having women achieve equal employment levels to men could add up to $12 trillion to the economy. Figures consistently place the number of women in the U.S. in the workplace at 57% of the total population. About 69% of men are engaged in formal employment. An additional 16 million women could enter the workforce if the ERA were to become part of the governing documents in the United States, creating a GDP boost that could be as high as 5%.
1. It requires a three-fourths ratification from the states to become law.
The Equal Rights Amendment was first proposed in 1923. It wouldn’t be passed as a possible amendment until 1972. Because there is a 75% requirement for ratification by the states to make an amendment to the Constitution, 38 states must agree with the proposal for it to become law. Congress set a deadline of 1982 for legislatures across the country to ratify the amendment. By the time the deadline expired, only 35 had endorsed the idea.
If Congress were to pass another version of the Equal Rights Amendment today, then that process would need to start over. There is still no guarantee that there would be enough support at the state level to approve the amendment.
2. Five states have actually rescinded their ratification of the Equal Rights Amendment.
In the 1970s, there were five states that decided to rescind or withdraw their ratification of the Equal Rights Amendment. They were Nebraska, Tennessee, Idaho, Kentucky, and South Dakota. What is interesting about the Constitution is that it only speaks to the power of a state to ratify an amendment. It does not suggest that there is a power in place to rescind this authorization. The current precedents would suggest that it would not be possible to do so. If another state were to join the 37 who have already said yes to this idea, then it would likely create another legal showdown that would need to be settled in the Supreme Court.
It should also be noted that a federal court ruled that offering a time extension for the amendment was unconstitutional and that states could withdraw their previous support, creating a different precedent to consider. The Supreme Court only ruled that the entire point was moot because there was not a complete ratification.
3. It would not protect people who do not identify as male or female.
Because the Equal Rights Amendment was originally crafted over 40 years ago, the recent issues of gender identification would not be included in the final text after ratification in the amendment’s current form. The goal is to provide women with equal protections, which is a necessary first step. Individuals who identify as non-binary, agender, or facing androgyny choices may not receive the same protections under the law. There is also the possibility that transgender individuals who complete their transition may not qualify because of their “change” from one gender to another.
4. The amendment could take away some of the benefits that women enjoy.
Phyllis Schalfly does not apologize for her opposition to the Equal Rights Amendment. Even in 2007, when writing a piece for the Los Angeles Times, she said that the process of granting equality should not involve taking away the privileges that women have fought so hard to earn in the first place.
“The amendment would require women to be drafted into military combat any time men were conscripted,” she wrote. “[It] would abolish the presumption that the husband should support his wife and take away Social Security benefits for wives and widows. It would also give federal courts and the federal government enormous new powers to reinterpret every law that makes a distinction based on gender, such as those related to marriage, divorce, and alimony.”
5. It could create fewer barriers to prematurely ending human life potentiality.
Whether you support the idea of abortion, are against it, or find yourself somewhere in the middle, this medical procedure does create an ending to that human life potentiality. There are times when it may be medically necessary. Some may pursue such an action because of their personal preferences or needs. When looking at how the ERA would address this issue, there is an excellent chance based on previous state-based rulings that it would expand opportunities where permitted. Just as this option was listed as a potential advantage, it could also be a potential disadvantage depending on what your perspective happens to be.
It is easy to get bogged down in the semantics of an argument about a specific piece of legislation, forgetting that we are all basically on the same side. Well over 95% of the U.S. population supports the idea of ensuring that women receive the same rights as women guaranteed in the structure of our government. How we decide to make that happen is our debate.
Some suggest that the 14th Amendment does enough, while others say it is not enough. There are benefits to the ERA that would be helpful, but it could also provide a lot of uncertainty. Even the chance to pass it now is uncertain since the deadline given to it is in the resolution language that proposes the text instead of the amendment itself.
The pros and cons of the Equal Rights Amendment suggest that it would be useful to create specific verbiage in the Constitution and Bill of Rights that would all for actual gender equality. Even if this process only provides a symbolic level of value at best, Justice Ruth Bader Ginsberg pointed out in 2017 that there is still value in such a result. “I would like to be able to take out my pocket Constitution and say that the equal citizenship stature of men and women is a fundamental tenet of our society, like free speech.”
Author Bio
Natalie Regoli is a child of God, devoted wife, and mother of two boys. She has a Master's Degree in Law from The University of Texas. Natalie has been published in several national journals and has been practicing law for 18 years.