The Washington PostDemocracy Dies in Darkness

Opinion Virginia just passed the ERA. Here’s why we still need it.

Virginia House Speaker Eileen Filler-Corn (D-Fairfax), center, Del. Charniele Herring (D-Alexandria), left, and Del. Jennifer Carroll Foy (D-Prince William) participate in a news conference promoting the Equal Rights Amendment at the Virginia Capitol in Richmond on Jan. 27. (Steve Helber/Associated Press)
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The writers, all Democrats, are members of the Virginia House of Delegates. Eileen Filler-Corn represents part of Fairfax County and is speaker of the House. Charniele Herring represents part of Alexandria and is the first female and African American majority leader in the House. Vivian Watts represents part of Fairfax County. Jeion Ward represents part of Hampton. Delores McQuinn represents Charles City County and parts of Richmond and Chesterfield and Henrico counties. Kaye Kory represents part of Fairfax County. Hala Ayala represents part of Prince William County. Jennifer Carroll Foy represents parts of Prince William and Stafford counties.

The historic 2019 Virginia elections sent the largest number of women to the Virginia House of Delegates in the body’s 401-year history. With a female speaker and majority leader at the helm in 2020 and numerous Democratic women serving as House committee chairs, women have more legislative influence than ever in the commonwealth. As legislators and women, we know that the Equal Rights Amendment is essential.

We ran on passing the Equal Rights Amendment. We delivered on that promise by voting for House Joint Resolution 1 on Jan. 15 and completed the ratification process with the Virginia Senate’s identical joint resolution today.

Our votes for constitutional equality were not a symbolic gesture. They are contributions to a marathon effort started in 1923, when Alice Paul and Crystal Eastman introduced the first ERA because they understood that the 19th Amendment granting women suffrage addressed only one area of gender inequality. Today, the ERA would substantially affect the lives of women across the country by proscribing sex discrimination directly in the Constitution itself, rather than only piecemeal through federal or state laws, and by confirming Congress’ power to legislate. As issues such as the #MeToo movement and the gender pay gap illustrate, our laws still require fundamental changes in some areas and more thorough enforcement in others.

Discrimination based on sex has been subject to varying and unequal standards of judicial review; the ERA would provide additional, and clearer, constitutional language in this area. Though the 14th Amendment’s equal protection clause is often cited in arguments against sex discrimination, courts accept a lesser level of justification for laws that discriminate based on sex than they will when racial discrimination is at issue. Supreme Court Justice Antonin Scalia argued that the 14th Amendment was drafted to establish equality for freed slaves, not to extend equal protection to women or any other group. Without language specifically affirming gender equality in the U.S. Constitution, state and federal protections for women can too easily be repealed, limited or not properly enforced.

The ERA could provide a base for laws mandating procedural improvements in cases of rape and sexual assault. The Atlantic reported in July that “the federal government estimates that police departments have warehoused more than 200,000 untested sexual-assault kits.” Constitutional prohibition barring sex discrimination will provide additional impetus for police departments and prosecutors to test kits promptly, as continued failure to pursue evidence could be litigated as systemic sex discrimination because the vast majority of reported assaults are committed against women.

The ERA would also support any laws Congress passes creating more comprehensive and permanent protections for victims of gender-based violence. Laws have lapsed, such as the Violence Against Women Act, which provides vital federal protections for survivors of domestic violence. Laws have been overturned, such as the criminal ban against female genital mutilation invalidated in U.S. v. Nagarwala. Direct, textual affirmation of equal status under the law, and of Congress’s authority to act on this bedrock principle “by appropriate legislation,” is clearly still needed.

The ERA would provide a stronger base in the Constitution for those who advocate for pay equity, for equal educational and vocational resources for women in prisons and against workplace discrimination.

We gratefully acknowledge the hard work of prior generations of women. The ERA survived smears during the 1970s when far-right opponents tried to steer the bipartisan effort off course. Opposition delayed ratification for decades, but ultimately could not stop Nevada, Illinois and, now, Virginia. Today, opponents are focused on deadlines, but whether Congress’s attempt to restrict the ratification period was itself constitutional under Article V is for the judicial branch to review.

We find the efforts of several Republican state attorneys general — supported by the Trump administration — to block the ERA via lawsuit repugnant. So does Virginia Attorney General Mark R. Herring (D). “Women in America deserve to have equality guaranteed in the Constitution,” Herring said on Jan. 8, and he promised that after the ratification vote he would “do everything in [his] power to make sure that the will of Virginians is carried out and the ERA is added to our Constitution, as it should be.”

We contributed to the struggle for women’s rights by bringing up the resolution and voting on it. Now Congress must do the right thing and ensure that women experience true equality with their male peers.

As Virginia officially becomes the 38th state to ratify the Equal Rights Amendment, we stand together in solidarity for the women in the commonwealth and the nation to usher in a new era of equality.