It's time to scrap the Equal Rights Amendment

Rep. Carolyn B. Maloney, Chairwoman of the Committee on Oversight and Reform in the US House, held a hearing Thursday in favor of ratifying The Equal Rights Amendment (ERA), which would write into the Constitution that neither the federal government nor any state can abridge or deny any right on the basis of sex. Democrats invited six witnesses but only allowed Republican's a single witness to examine whether to certify and publish the ERA as the 28th Amendment to the US Constitution.

Inez Feltscher Stepman, Senior Policy Analyst with Independent Women's Voice and the only witness in opposition to the amendment, testified that the Equal Rights Amendment not only expired, but is unnecessary, and potentially harmful to modern day women and girls. Stepman said, "Unfortunately, in 2021, the ERA has no upside. The language might sound nice, but it will not improve women's lives. To the contrary, by prohibiting public policy from ever taking into account biology and common sense, the ERA would have significant negative consequences on women and girls."

The ERA started as a suffragists-led effort to secure equality for women in issues like property, employment, and divorce. In the late 1960s, the Women's Liberation Movement catapulted the ERA to the forefront of debate. Hulu made an entire series about it, "Mrs. America", which dramatized the movement through the eyes of second wave feminists like Gloria Steinem, and conservative activist Phyllis Schlafly, who famously led the fight against the ERA.

The existence of "separate spheres" for men and women was a universal concept for both sides of the suffrage debate. Over the years, the concept of spaces for women have blurred, especially in areas which social reformers have interests. For the ERA to serve its intended purpose, it must take the needs of women fully into account, without letting separate considerations of inclusivity stand in the way of sound policy.

The meaning of sex in the ERA's simple language is spurious when drawn into broader context in matters of gender diversity and identity. This is where the expansive concept of women's rights becomes a means to influence social and legal conceptualizations of sex and gender. The ERA would affect judicial handling in a wide range of claims where simple truths in linguistic construction and meaning are important. Seeking a formal amendment to the Constitution justifies an end to having judges impose them and puts into law language judges could use to fill in the blanks on policies that may not otherwise pass the process of jurisprudence.

On his inauguration day, Biden signed an executive order requiring federally funded institutions to include gender identity and sexual orientation in its interpretation of sex discrimination. This signals a shift in how the administration will interpret considerations in sex and gender, specifically in laws that grant biological males access to women-only programs, such as, athletics, scholarship, shelters, and prisons.

In testimony, Stepman explains how this is already happening in states that allow biological male inmates who identify as female to transfer to women's prisons, a policy which has already resulted in sexual assaults on female inmates. Stepman says, "The ERA could potentially make the problem far worse by extending that invitation, not just to the small percentage of people who are born one sex and identify as another, but to all male prisoners."

This is just one example of many where the determination of biological differences become relevant. Greater scrutiny at the federal level means states will have to prepare to defend their practices.

The last amendment to the US Constitution took over 200 years to ratify, so it goes without saying that this hearing was a very big deal. The ERA merits a higher level of scrutiny than being curtsied through narratives that appeal emotionally but fall short on material logic. The hearing focused on the historical meaning and significance of the amendment, but there are generations of women who did not exist at the time it was first written. Stepman says this "would deprive two generations of American women their right to fully consider the ramifications of the proposed amendment and choose for themselves whether they want to live in a world that treats them exactly the same as men all of the time."

Throughout the hearing, majority witnesses speaking for the Democrats fueled myths of gender wage gaps, despite the fact that women are doing very well in the US on several metrics: they control the majority of wealth, and earn more degrees in both undergraduate and graduate programs. Wage gap narratives tend to contrast male dominated jobs against female dominated jobs, but not women and men doing the same work. Once you consider ceteris paribus, or, all things equal, the pay gap starts to evaporate. Workplace equality tends to become more desirable for jobs that require less physical labor. To better understand the contradictions of equality, look through the lens of class politics, where female liberation is captured by the aspirations of a wealthy elite.

The late Justice Ruth Bader Ginsburg, a proponent for the ERA proposed that, "Supporters of the language of the 1972 ERA have only one constitutional option, and that is to start the whole process over again and make their case to current voters nationwide." In 2020, Justice Ginsburg argued that there was "too much controversy about late comers," meaning modern social reformers with special interests.

The protection of women and girls against the power and prejudice of the majority is at the heart of the Constitution's moral successes. While the hearing on the Equal Rights Amendment stands as a symbolic gesture in the fight for women's liberation, women have already achieved full legal equality with men, including advancements in social and economic progress.

All the ERA offers women today is sweeping language that serves as a recipe for endless litigation. The women's sphere will thrive in equality if it can prevent politicization by special interest groups and ensure that what differentiates women is not up for reduction. Denying simple truths isn't good for women, and if we are to pass laws that are good for women, we must first come to consensus on what is good. Equality can exist without provoking a constitutional crisis or forcing an amendment that will bring these much-needed debates to a close.