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Kimberly Simmons is a part-time associate professor at the University of Southern Maine. This column reflects her views and expertise and does not speak on behalf of the university. She is a member of the Maine chapter of the national Scholars Strategy Network, which brings together scholars across the country to address public challenges and their policy implications. Members’ columns appear in the BDN every other week.
If the vast majority of citizens support the Equal Rights Amendment (ERA), why are women still left out of constitutional protections? This Human Rights Day is the time to bring our laws in line with our values and the will of the people.
The United States is one of the only democracies in the world that does not explicitly address sex discrimination, leaving us vulnerable to civil and human rights abuses. First introduced on Dec. 10, 1923, the federal ERA simply 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.” To most, this likely seems straightforward and unobjectionable.
Maine voters ratified the ERA in 1974, but the effort stalled in the 1980s, with ratification in three states still needed. Galvanized by the 2016 election, Nevada, Illinois and Virginia voters finished the job. However, rather than recognizing the 28th Amendment, the Trump administration blocked implementation, noting that a congressional deadline had passed. Legislation designed to clear this obstacle, supported by all of Maine’s delegation, was blocked by GOP lawmakers. Federal courts refused to intervene.
Advocates rebutted, noting that there is no language about a deadline in the text of the amendment or in the Constitution, and that the 27th Amendment took over 200 years to be ratified and was then easily certified. This year, the American Bar Association issued a statement arguing that the ERA has clearly met ratification standards and must be considered the 28th Amendment. In the waning days of the Biden administration, pressure is building for the president to certify the ERA.
Opponents to the ERA often envision a society where women are protected through an emphasis on sex differences and express concerns that equality will require sameness. Others believe the ERA is simply unnecessary. However, women and gender studies Professor Carrie Baker argues that political opposition primarily stems from “objections of the Catholic Church, and corporations which make billions of dollars each year from paying women less than men and charging them more.”
Some feminists also express concern that programs intended to help women as a group, such as WIC (women, infant and children’s food benefit) or VAWA (Violence Against Women Act) will be reinterpreted as discriminatory against men. The United States historically focuses on formal equality, which prohibits discrimination, rather than substantive equality, which requires state action to address discriminatory outcomes, and there is concern this framework will be misused to undermine gender justice. Newer state level campaigns, including Maine Equal Rights for All, use more inclusive language to address these concerns.
In her book, “We The Women: Mothers Of The Equal Rights Amendment,” Professor Julie Suk describes similar concerns among feminist advocates in previous generations, and argues that the ultimate pathway toward greater gender justice will be through culture change and legislation, not the courts. However, without basic constitutional recognition, women lack an essential symbolic and practical tool. The National Association of Women Lawyers believes the case can be made to expand feminist legal interests with the Equal Rights Amendment being made part of the Constitution. I simply can’t accept being left out of the full rights and responsibilities of citizenship because of my sex.
On Dec. 15, Americans commemorate the ratification of the Bill of Rights, which directs our government to preserve individual liberty and equality under the law. Women’s rights are central to democracy and human rights. The U.S. simply cannot be a world leader if we maintain such hypocrisy at home. The certification of the Equal Rights Amendment deserves action from President Joe Biden in his final weeks in office.
