Sep 11, 2023
Sep 11, 2023
By Ahtossa Fullerton
As we move into Fall and our children go back to school, I write on a subject I have been thinking about for too many years – the Equal Rights Amendment (ERA). Earlier this year, the Senate failed to pass a resolution necessary to remove the deadline for states to ratify the ERA. The ERA is a Constitutional amendment that prohibits discrimination on the basis of sex. The fact that the ERA has yet to pass indicates an unfortunate controversy as to whether the constitution should guarantee equal rights for all American citizens on the basis of sex.
The ERA was first proposed in 1921 when the National Woman’s Party sought to guarantee women equal rights with men. Over the years conflict arose between women’s advocacy groups, with some arguing that the benefits gained from the ERA were overshadowed by the loss in “special protections” for women like avoiding the draft and alimony.
In 1972, both the House and Senate passed Resolutions sending the ERA to the state legislatures for approval, with President Nixon lending his immediate support. The deadline for state ratification was seven years. Hawaii was the first, with a majority of states ratifying within the first year. By 1977, 35 of the 38 states needed to ratify had supported the ERA, with five states rescinding their vote as a result of a movement led by Phyllis Schlafly, who advocated for women to hold “traditional” roles. Whether a state can rescind its ratification of an amendment, as well as a number of other issues pertaining to the passage of the ERA, have yet to be decided.
The House passed a Resolution removing the deadline for ratification in 2021. The Senate, as indicated by this recent 51-47 vote, has yet to commit to clearing the way for ratification. Unsurprisingly, the vote was cast upon party lines. While discrimination on the basis of sex is not prohibited under the U.S. Constitution, 25 states have enacted their own laws protecting against sex discrimination.
However, as our culture evolves, I have found myself asking, does the ERA go far enough in its protections? Is it old-fashioned, as my kids might call it, in that it seeks to protect women alone? If the ERA passes in its current form, would the language be interpreted to protect only women? What about those who identify as women? Does the language - equal rights on the basis of sex - protect all American citizens no matter their sexual or gender identity? Should the ERA language be modified to provide these protections?
It has taken so long for passage of the ERA, perhaps we should recognize that the world has evolved in ways we could not imagine in 1972. An expansion of the ERA should increase inclusivity, given the attacks on women’s health care, as well as those in the trans community. While today the ERA in any form remains an elusive hope for millions of Americans, I will remain optimistic and encouraged by the promise of equality and fairness for all.
Ahtossa is a partner at Wasacz Hilley & Fullerton LLP and has been practicing juvenile dependency law since 2005. She is court-appointed counsel representing parents and children in San Francisco, Marin, and other Bay Area counties. Before practicing dependency, Ahtossa was in the Menlo Park office of Orrick Herrington & Sutcliffe LLP, practicing corporate and securities law. She has served as an Officer and Director for Marin County Bar Association and is currently the 2022 President Elect for Marin County Bar Association. Ahtossa serves on the board and as Past President for Marin County Women Lawyers. She also served on the Executive Committee for California Women Lawyers, the California State Bar Commission on Judicial Nominees Evaluation and volunteers for Legal Aid of Marin's Community Court.