But those laws, and others, do not offer the protections the Equal Rights Amendment would, advocates say.
The long-sought amendment, ratified by Virginia legislators Wednesday, faces daunting political and legal hurdles before it can be adopted.
Still, both pro- and anti-ERA activists say the amendment has the potential to make material differences in the everyday lives of Americans, if it someday takes effect.
The amendment would make the anti-discrimination policy a permanent part of the U.S. Constitution, simplifying enforcement of such laws and forcing society to reconsider whether men and women are being treated equally on a range of issues.
Those who have fought for decades to defeat the amendment say it will wipe out existing limitations on abortion and needed barriers between the sexes in sports, bathrooms and prisons.
“It’s a profound national embarrassment that we are the only industrial democracy that does not have equality for women in our Constitution,” said Kathleen M. Sullivan, former dean of Stanford University Law School, who has testified before Congress about the need for the ERA. “In close legal cases, it would lead to clearer outcomes. ”
A constitutional amendment, she said, would make the Supreme Court far less likely to overturn decisions by previous courts that expanded rights and protections for women.
It would also give clearer guidance to state and federal governments that sex discrimination is impermissible and establish the policy that sex bias should be presumed to be “irrational” — which means women would not have to prove in every court case that an employer or organization’s reasons for discrimination are not more important than the discrimination’s effect on the woman. In short, advocates say, the amendment would make it easier for women to sue and collect damages when they face discrimination.
“As proud as I am of the progress we’ve made under the law . . . those laws could be erased tomorrow,” said Del. Vivian E. Watts (D-Fairfax) as she argued in favor of the amendment from the floor of the Virginia House on Wednesday.
Virginia is the 38th state to ratify the amendment, which is the minimum number required to enact it. But there are legal disputes over whether the time for ratification has expired and whether some states that have rescinded their support for the amendment have brought the tally below the required threshold.
The vote in Virginia has nevertheless boosted the nearly century-old effort to enshrine women’s protections, and civil rights groups are vowing a nationwide push to make it happen. They point to laws that have been reined in over the years, as well as funding issues for statutes such as the Violence Against Women Act, as reasons the amendment is needed.
“Title IX is a perfect example that appears to provide women with equal protection alongside race and other categories,” said Wendy Murphy, a Boston attorney who is suing the Archivist of the United States over the ERA. “What we’ve seen is the constant weakening of Title IX over the years by courts and appellate decisions. You can go to Congress and state legislatures and win enactment of laws that guarantee equal rights, but when you go to enforce the law, you don’t actually get enforcement.”
Anti-discrimination laws now in place are helpful, said Eleanor Smeal, president of the Feminist Majority Foundation, who has been working on the ERA for 50 years. But they do not address issues such as insurance policies, which are regulated by states and have tilted against women in costs for annuities, life insurance and auto insurance over the years, she said.
“We believe [the ERA] will give strength to those laws, but also in areas where there’s massive discrimination that we haven’t been able to touch,” Smeal said. “We keep talking about wage discrimination, but benefits are also important. It’s real money in our pockets.”
Anti-ERA forces agree the amendment, if enacted, would have an effect — but not one they prefer.
Douglas D. Johnson, a senior policy adviser for the National Right to Life Committee, said the ERA would make government limitations on abortion impermissible and eliminate bans on the procedure late in a pregnancy.
He reasoned that since women are the only ones who get pregnant, government or company efforts to restrict an individual’s decision on abortion could be seen as discriminatory. “It’s perfectly possible to write an ERA without reference to abortion, but the other side is unwilling to do it,” Johnson asserted.
In fact, the ERA does not mention abortion — its main sentence is “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Women’s rights advocates see any strengthening of a woman’s right to an abortion as a positive.
Anne Schlafly Cori, president of the Eagle Forum, a conservative interest group, and daughter of renowned anti-ERA activist Phyllis Schlafly, said the ERA will result in “boys pretending to be girls and playing on girls’ teams and taking girls’ scholarships” — contentions that supporters of the amendment dispute.
Transgender female prisoners are already transferring into women’s prisons in Illinois and Alaska, Cori said, a change LGBT advocates say is safer and fairer for the transgender inmates, but which Schlafly and other conservatives oppose.
Even the most optimistic ERA activists say it will be two or three years before the future of the amendment is resolved by the courts. Were the ERA to be adopted into the Constitution immediately, it would not go into effect for two years, Smeal, Sullivan and Murphy said, to give the government time to revise its policies and laws.