The Equal Rights Amendment: A Historic Fight for Gender Equality

LAP Progressive -Jan 26th2025

Elahe Amani

In a moment reminiscent of Abraham Lincoln’s pivotal role in passing the 13th Amendment to abolish slavery, President Joe Biden has expressed his commitment to the approval of what could become the 28th Amendment to the United States Constitution: the Equal Rights Amendment (ERA). Both amendments require the arduous task of securing a two-thirds majority in Congress, symbolizing a historic push toward greater equity and racial justice.

The 13th Amendment, ratified in 1865, marked the end of the legal institution of slavery in the United States, addressing racial inequality at its most explicit and systemic level. Similarly, the proposed 28th Amendment aims to enshrine gender equality into the Constitution, addressing centuries of systemic discrimination against women and marginalized genders. These amendments, though addressing distinct forms of inequality, share a common thread: both represent transformative milestones in the nation’s ongoing struggle to uphold human rights and ensure equality for all.

The parallels between these amendments underscore the continued evolution of America’s legal and moral framework. Just as the 13th Amendment dismantled the foundation of racial oppression rooted in slavery, the ERA seeks to establish a constitutional guarantee of gender equality, prohibiting sex-based discrimination at the highest legal level. However, despite these shared aspirations, the road to ratification for the ERA and CEDAW has been fraught with challenges, leaving gender equality an unfulfilled promise.

The History of the Equal Rights Amendment

Contrary to widespread belief, the United States Constitution does not explicitly guarantee gender equality. A 2016 survey revealed that 80% of Americans incorrectly assume that men and women are equally protected under the Constitution. This misconception highlights a glaring omission in the nation’s foundational legal framework. Women and other marginalized genders lack explicit, permanent constitutional protections, leaving them vulnerable to unequal treatment under the law.

Drafted in 1787 by white, landowning men—many of whom enslaved people—the Constitution was not designed with women in mind. Subsequent amendments, such as the 14th Amendment, have extended limited protections to women, but these are far from comprehensive. The Supreme Court’s interpretation of the 14th Amendment’s Equal Protection Clause applies only intermediate scrutiny to cases of gender discrimination, a weaker standard than the strict scrutiny applied to race, religion, or national origin. This disparity has perpetuated legal inequalities that cannot be fully addressed under current constitutional law.

The ERA, first introduced in 1923 and passed by Congress in 1972, seeks to close this gap. Its text is simple yet profound: “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 amendment also grants Congress the power to enforce its provisions through legislation. Despite its clarity and widespread public support—94% of Americans favor gender equality in the Constitution—the ERA remains unratified more than a century after its inception.

The Struggle for Ratification

When the ERA passed Congress in 1972, it was celebrated as a major victory for gender equality advocates. However, the legislation included a seven-year ratification deadline. By 1979, only 35 states had ratified the amendment, three short of the required 38. Although Congress extended the deadline to 1982, the ERA faced fierce opposition. Anti-ERA activists stoked fears about its potential impact on traditional gender roles and family structures, successfully stalling the movement. When the extended deadline passed, the ERA remained three states short of ratification.

This failure left women and gender minorities without explicit constitutional protections. Existing laws, such as Title IX and the Equal Pay Act, offer some safeguards but are not permanent guarantees. They can be repealed or weakened, leaving protections precarious. The ERA, by contrast, would provide an unassailable constitutional foundation for gender equality.

Renewed Momentum and Ongoing Challenges

Globally, the United States lags behind in recognizing gender equality in its constitution. Among the 193 member states of the United Nations, only the United State, Iran, Palau, Somalia, Sudan, Tonga and the Holy See/ Vatican City. President Jimmy Carter signed the treaty in 1980, but the Senate has never ratified it. Also 85% of the member states include provisions addressing gender equality, and 115 explicitly prohibit discrimination based on sex. This stark contrast underscores America’s failure to meet international standards of justice and equality.

In recent years, however, the ERA has experienced a resurgence. Nevada ratified the amendment in 2017, followed by Illinois in 2018 and Virginia in 2020, reaching the required threshold of 38 states. Despite this progress, the original ratification deadline poses a legal obstacle. Bipartisan legislation has been introduced in Congress to remove the deadline, offering a path forward for the ERA.

Commonalities Between the 13th and Proposed 28th Amendments

The 13th and 28th Amendments address distinct forms of inequality—slavery and gender discrimination—but share a foundational purpose: advancing human rights and dismantling systemic oppression. Both amendments represent pivotal moments in the nation’s journey toward justice.

1. Recognition of Systemic Inequality: The 13th Amendment confronted the deeply entrenched institution of slavery, while the ERA seeks to dismantle structural gender inequities. Both acknowledge the pervasive nature of discrimination and the need for constitutional remedies.
2. Universal Human Rights: Each amendment expands the scope of rights enshrined in the Constitution. The 13th Amendment guarantees freedom as a fundamental human right, while the ERA aims to establish gender equality as an unassailable legal principle.
3. Constitutional Protections: By embedding these rights into the Constitution, both amendments ensure that their protections cannot easily be eroded, offering lasting frameworks for social and legal progress.

The Path Forward

Ratifying the ERA and CEDAW, the bill of rights for women and girls would mark a historic milestone in the fight for gender equality. Like the 13th Amendment, which reshaped the legal landscape to align with the principles of liberty and justice, the ERA would establish a critical legal foundation for addressing gender-based discrimination. Its adoption would signal a commitment to equality and justice for all, ensuring that future generations are protected from systemic discrimination.

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