There are at least two reasons we should be wary of this version of the ERA, which states simply (or vaguely): “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
The first is that women already have “equality of rights under the law,” the result of the Civil Rights Act of 1964, which prohibited discrimination (i.e. unequal treatment) on the basis of race, color, religion, national origin and sex — which is all the current ERA promises.
But the Civil Rights Act by itself was not enough to overcome the disadvantages incurred by women’s past exclusion from male jobs and leadership positions. Instead, affirmative action and other policies were necessary to even the playing field for women vis-a-vis men. These gender-conscious policies and programs recognized that women’s experiences, socialization and parental expectations were different from men’s and that those differences had to be taken into account to secure actual equality.
These efforts have been far-ranging: Since Congress passed the ERA in 1972, companies and other organizations have set goals and timetables to hire and promote women into once male positions. They set up mentorship programs to bring women into leadership positions. They instituted more “family-friendly” policies and set up day-care centers to attract talented women. The government has required contractors to seek out businesses owned by women. All of these endeavors have helped women succeed and thrive in domains that were once exclusively male. In 1972, women got paid, on average, 57.9 percent of what men did. In 2018, they earned 81.6 percent of what their male peers did.
Yet the efforts that have spurred such advancements could be seen to discriminate in favor of women, which, on its face, violates the Civil Rights Act and the ERA as it is currently written.
That means these types of policies would be threatened, attacked anew, under a gender-blind constitutional amendment. Just as many people today are suspicious of “colorblind” laws that “don’t see race,” women’s rights supporters should be wary of a new “gender-blind” amendment that does not acknowledge women’s different circumstances. Initiatives to increase the number of female directors, scientists, chief executives, etc., could be more vulnerable to attack. Men have already sued women’s organizations for gender discrimination, and the ERA could encourage more men to sue for “equal treatment.”
The scope and meaning of a ratified ERA would, of course, be decided by a much more conservative Supreme Court than the ones that have previously upheld affirmative action and diversity measures — and it is worth noting that the court has increasingly narrowed what these measures can be, even before its latest turn right. An amendment would be much harder to repeal than a law, if those decisions proved harmful to women.
The second concern ERA supporters should consider is the amendment’s use of the term “sex,” which typically refers to the biological differences between men and women. When the amendment was conceived in the 1920s, the term “gender,” meaning the socially constructed roles or identities accompanying one’s biological sex, was not yet in common usage. Interestingly, however, the authors of the 1972 version of the ERA kept the word “sex” and did not replace it with “gender.”
This wording would seem to exclude categories such as gender expression, gender identity, genderqueer and non-binary, which would fall under the broader term of “gender.” Where transgender people would fall under this wording could, it seems, depend on their transition status. One could argue that sex and gender are interchangeable, of course, but others might argue for a strictly biological category, which would privilege cisgender women. Again, it would depend on how the Supreme Court interprets the term. Either way, the arguments about these terms (should the ERA proceed) would create yet another wedge issue among progressives and women that could be easily exploited by the right.
The ERA was a noble dream that inspired a variety of women’s movements to achieve much of what they sought through legislation, consciousness-raising and cultural revolution over the past half-century. It offers nothing that can resolve or lessen the current climate of misogyny, the double-bind of women who seek leadership positions (perceived as either too nice or too grasping), the ambiguities of harassment, the persistence of stereotypes or pay disparity. What it will probably do is make it more difficult to actually address any of those concerns.