It’s International Women’s Day, and I find myself pondering the current status of women in the United States compared to the rest of the world’s wealthiest nations. It isn’t a pretty picture.
International Women’s Day has served two purposes since its inception early in the 20th century. It is simultaneously a celebration of the often overlooked achievements of women and a time to push for accelerating improvement in the status of women in all forms of gender discrimination and gender-based violence.
The United States is the world’s largest economy and thus the wealthiest nation by far if all we measure is gross domestic product. Even when we factor in purchasing power and gross national income, the U.S. is still the ninth-richest country.
There are many measures of inequality that distress me greatly, including our low global ranking when it comes to pay equity, family leave and child care policies, maternal and child health, female representation in government, and reproductive freedom, just to name a few. But today I am stuck on America’s failure to ensure gender equality as a federally protected right.
Georgetown University’s Institute for Women, Peace and Security in 2021 published the third edition of its index ranking of 170 countries according to the status of their women. The U.S. didn’t crack the top 20. Meanwhile, according to data from the World Bank, only 12 of the world’s countries have legislation that guarantees “full equal rights for women” — and the United States is not on that list, either. While 189 nations have ratified the United Nations’ Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the U.S. has not, sharing that distinction with Iran, Somalia, Sudan, Tonga, and Palau.
The Equal Rights Amendment
Failing to endorse CEDAW, the “gold standard” of international treaties designed to protect and promote the rights of women and girls, is but one of two significant ways that the U.S. has refused to legislate gender equality. The other is our continued failure to acknowledge that the Equal Rights Amendment has already been duly ratified and that according to Zakiya Thomas, president and CEO of the ERA Coalition and Fund for Women’s Equality, “it is already valid and enforceable today.”
The current status of the Equal Rights Amendment to the United States Constitution is a complex issue, but the ERA itself could not be simpler — and there is overwhelming support for it among the general public. The amendment’s text states: “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 Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
A spring 2022 poll shows that 81 percent of likely voters support Congress passing legislation to enact the ERA. The same poll also showed that 70 percent of the population thinks men and women are already guaranteed equal rights under the Constitution.
The ERA is in the news, and there is some hope that it might finally be enacted into law. Article V of the Constitution governs the amendment process. A proposed amendment must be endorsed at one of two legislative levels: either two-thirds of each house of Congress must pass it, or the legislatures of two-thirds of the states must call for a constitutional convention to vote on it (this second strategy has yet to be employed). Once one of these things has happened, the legislatures of three-fourths of the states (38 out of 50) must then ratify the amendment.
Many constitutional scholars, in conjunction with feminist advocates, now argue that ever since January 2020 when Virginia became the 38th state to ratify, the Equal Rights Amendment has met all the requirements stipulated in Article V and should be enacted as the 28th amendment to the Constitution.
There are two significant barriers to this happening. First, only 35 states ratified the amendment within the deadline Congress gave when the amendment passed both chambers in 1972. Most states ratified in the early 1970s, but in 1982, when the clock ran out, the total was stalled at 35 — three states short of the required 38. Many conservatives rejoiced, considering the ERA dead.
In recent years, however, the last three required states ratified: Nevada in 2017 Illinois in 2018 and Virginia in 2020. Scholars and advocates argue that setting a time limit on proposed constitutional amendments is itself unconstitutional because Article V does not empower Congress to set such limits. Setting such limits has merely been congressional practice.
On Jan. 31, Massachusetts’ own representative Ayanna Pressley, held a news conference to announce that a joint resolution was being introduced (again) into both houses of Congress with some bipartisan support that a) acknowledges that the ERA has met the requirements for ratification, b) acknowledges that the ratification deadline was always arbitrary and eliminates it and c) recognizes the ERA as the 28th amendment to the Constitution.
The major threat to passage of this resolution is a potential filibuster by Senate Republicans. This has happened twice recently (in 2020 and 2021) when the House passed similar resolutions eliminating the timeline, but the Senate never voted due to filibuster. Constitutional law scholars from Harvard, Columbia, University of Chicago, New York University and Cornell agree that Article V issues, such as this one, should be exempt from the filibuster.
These new arguments give me hope about possible passage of the ERA in my lifetime. It was 100 years ago that it was first introduced in Congress. This anniversary year would be a great time for it to become law.