The Equal Rights Amendment could soon become part of the Constitution, but experts are divided on whether it would be a boon or a bust for women’s finances.
The ERA, which mandates equal rights for both men and women, received new life last week as Virginia became the 38th state to approve it, following Illinois in 2018 and Nevada in 2017. It was introduced in 1923, passed by Congress in 1972 and ratified by 35 of the 38 states needed to enshrine it in the Constitution by 1977.
“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” reads the proposed amendment’s first sentence, followed by two additional sentences specifying that it would be enforced by Congress and take effect two years after ratification.
“It’s a constitutional guarantee of women’s equal status as citizens,” Julie Suk, a professor of sociology, political science and liberal studies at City University of New York who studies comparative constitutional law, told MarketWatch. “In practice, it means that it can be used by Congress as an anchor for legislation that promotes gender equality.”
The Equal Rights Amendment has strong critics
Yet the amendment has strong critics, including some conservatives who have long argued that it would provide a new constitutionally guaranteed right to abortion access. And ERA skeptics span the political spectrum: Kim Forde-Mazrui, a University of Virginia law professor and constitutional law scholar who calls himself “a liberal supporter of women’s equality,” argues that the amendment would do nothing and even potentially be harmful.
The ERA is unnecessary because the Constitution already bars sex discrimination by the government, Forde-Mazrui wrote in a Jan. 16 op-ed for the Richmond Times-Dispatch. It would do nothing to address equal pay, violence against women or workplace sexual harassment since it doesn’t extend to the private sector or households, he said.
“Some of the policies that could benefit women — like affirmative action [or] requiring companies to change policies that have a discriminatory impact against women or against women’s pay — would become more vulnerable to becoming challenged as discrimination against men than is currently the case under the Constitution and civil rights laws,” Forde-Mazrui added in an interview with MarketWatch.
“The symbolic value is important and it could have cultural effects,” he said, “but I don’t think it’s worth the actual harm that the ERA would bring.”
Suk, who said she hadn’t read Forde-Mazrui’s arguments and therefore couldn’t comment on them, said abstract concepts like “equality” in constitutional provisions could indeed be interpreted in ways that disadvantage vulnerable groups. But at the same time, she said, concerns that the ERA wouldn’t be optimally helpful or might be used to harm women are “throwing the baby out with the bath water,” given the amendment’s “huge potential.”
“Throughout history, people have contested the meaning of every law,” Suk said. “The question is: If it’s possible to have contested meanings, does that mean we shouldn’t have it?”
It remained unclear whether the amendment would actually become part of the Constitution: The Justice Department said in early January that the ERA couldn’t be ratified because the deadline to do so had expired in 1982, a rationale echoed in a federal lawsuit filed last month by Alabama, Louisiana and South Dakota. South Dakota and four other states that previously approved the ERA have also since rescinded their ratifications. (Suk and others have contested these opinions.)
The impact on women’s economic opportunities
But legal experts suggest that if the ERA’s ratification were to be completed, it could have a substantial impact on women’s economic opportunities, including as a political tool and as a means for women to seek legal recourse.
Suk, who has written extensively about the ERA, said it would likely lend political support for legislation that promotes economic opportunity for women — including the Pregnant Workers Fairness Act, which is pending in Congress and would guarantee workers reasonable accommodations related to pregnancy or childbirth. The ERA, she said, “would provide the political push” for that bill to succeed.
Kate Nielson, the director of public policy and legal advocacy for the nonprofit American Association of University Women, which supports the ERA’s ratification, called the amendment “a tool in the legal toolbox” to help women who have experienced discrimination seek legal recourse.
“The ERA would provide the basis within the Constitution to prohibit discrimination based on sex,” Nielson told MarketWatch. “That includes discrimination around finances, unequal pay and other factors that contribute to economic instability for women.”
ERA could have larger impact on women of color
While existing laws like the Equal Pay Act and Title IX already provide anti-discrimination protections, ERA advocates argue that a constitutional amendment would have greater staying power. “What this would do is ensure that there are no rollbacks,” Nielson said. The amendment would “make sure that we wouldn’t have to rely on laws that could be rolled back at the whim of Congress or the courts,” she added.
The Supreme Court has long interpreted the equal protection clause of the 14th Amendment to also prohibit sex discrimination in many cases, Suk added. But “when you have a new amendment that is not determined in its meaning by 14th-Amendment precedent,” she said, “it becomes possible for judges to create a new jurisprudence with new legal theories of what constitutes discrimination.”
Jennifer Carroll Foy, a lawyer and Democratic member of Virginia’s House of Delegates, said the amendment would provide reinforcement to laws and statutes already on the books that address sex discrimination, pay inequality and violence against women.
“The constitutional amendments and the laws have to work in conjunction,” Foy told MarketWatch. For example, with an Equal Rights Amendment, women would have a better shot at sex-discrimination cases in federal court, she said.
Foy, who says she has experienced sex discrimination firsthand, added that the ERA’s potential impact on equal-pay laws could have an even larger impact on women of color — after all, while women on average make about 80 cents on a man’s dollar, the gap is even wider for many women of color.
Black women working full-time and year-round earn around 63 cents on a white man’s dollar, Native Hawaiian and Pacific Islander women make 59 cents, Native American women make 57 cents and Latinas make 54 cents, according to the National Women’s Law Center. Asian women make 87 cents on the white male dollar, on average, but “the wage gap is substantially larger for some subgroups of Asian women,” says the NWLC.
When you pay African-American women and women of color equal wages, Foy said, “you are lifting not only millions of women, but millions of families, out of poverty.”
Of course, the ERA has its limitations, including that it wouldn’t apply to private-sector employers. Nielson acknowledged that “as with most other amendments to the Constitution, [the ERA] pertains to government action and prohibits discrimination by the government, including within statutes, regulations, employment, and law enforcement.”
“However, there might be some reach into private institutions if those institutions have substantial government ties,” she added. “Importantly, the presence of the ERA could prompt new legislation to remedy inequalities and could impact the way that laws are interpreted.”
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