Virginia’s Nov. 5 state election, in which the Democratic party won a majority in both the Senate and the House for the first time since 1995, is important far beyond the state—and not just because Virginia happens to be a battleground for the upcoming presidential election.
Once the new legislature comes into power in January 2020, its newly-elected Democratic candidates have expressed that they intend to ratify the Equal Rights Amendment (ERA). The amendment, approved by Congress in 1972, would alter the US Constitution to expressly forbid any sort of discrimination on the basis of sex. If that happens, Virginia will become the 38th state to ratify the amendment, finally meeting the threshold for the amendment to be added to the Constitution.
Most state constitutions, including in places that haven’t ratified the amendment, already include amendments for gender equality, and there are several federal laws (such as the Equal Pay Act of 1963, the Pregnancy Discrimination Act of 1978, and Titles VII and IX of 1964 and 1972 respectively) that make discrimination against women illegal. So, why is the ERA still important?
Adding the amendment to the Constitution would give equality between sexes the highest possible legal protection, filling any gaps left open by individual laws or non-binding legal precedents. “There is no shelf life for equality,” said Nevada state senator Pat Spearman commenting on the prospect of Virginia’s ratification of the amendment.
The amendment would shape future laws, too. Federal courts would have to evaluate any law that might attempt to deny access to contraceptive care on the grounds of religious beliefs, for example, to determine whether it creates unequal treatment for women—a condition that is not currently a requirement for a law to be constitutional.
More philosophically, mentioning discrimination on the basis of sex in the Constitution shows victims that it’s something that does exist and happen. In turn, this would make claims of gender discrimination—in wages, for instance, or career opportunities—rest on much more solid grounds: People who feel that they have been subject to gender-based discrimination would not need to demonstrate that such discrimination exists before demonstrating they were a victim of it.
Even though it’s been going for nearly a century, the process for getting the ERA approved won’t be quick or simple. The amendment was initially meant to be ratified by 1979, then Congress extended the deadline to 1982. If Virginia ratified the amendment in 2020, it would obviously not meet that deadline.
So what happens then? Carol Jenkins, the co-president of the ERA Coalition, a group of organizations working to get the ERA in the Constitution, told Quartz the first step is to get Congress to remove the deadline completely. A bill that would remove the deadline is meant to take the floor of the US House of Representatives soon; it already has enough cosponsors to guarantee its passage. Ensuring passage in the Senate might be trickier, says Jenkins, although Republicans Susan Collins and Lisa Murkowski are involved in crafting a bipartisan bill similar to the House’s that would rescind the deadline.
If the bill doesn’t pass the Senate, not all would be lost. The deadline itself isn’t part of the actual amendment, but only its preamble, which wasn’t voted on by Congress. According to some organizations in the ERA Coalition, this could support an argument that the deadline is actually irrelevant.
Once the amendment’s ratification is confirmed, the US Archivist (David Ferriero) will add it to the Constitution, and then send it to the Justice Department for the attorney general to sign. After that, it will take two years before the amendment would finally go into effect.
How long will all that take? “I wouldn’t put a date on it,” says Jenkins, adding that this might even become a 2020 election issue, if the Supreme Court determines that Congress needs to remove the deadline and a majority of Senators wasn’t willing to pass the bill that would do so.
“[The ERA Coalition’s] guess is that this is going to the Supreme Court no matter what,” she says, pointing to likely legal challenges from states that tried to walk back their ratification but were denied the right to change a constitutional decision made by a previous assembly. Even so, the ERA Coalition is still pushing for ratification in all 50 states.
All this would likely add years to the tribulations of an amendment that was first presented 96 years ago. Yet Jenkins is optimistic. “It will be fun to see [the ERA amendment] as it moves along,” she says, “and America gets adjusted to the fundamental acceptance of all sexes as equal.”