Amplified by the #MeToo movement, the federal Equal Rights Amendment, a cause championed by feminists in the 1970s and 1980s, is getting newfound attention from legislatures in southern states like Virginia and South Carolina.
Since Illinois ratified the measure in May, it seems that the ERA, which guarantees equal protections for women in the U.S. Constitution, is just one state from the 38 needed for ratification, though legal hurdles remain.
U.S. Rep. Carolyn Maloney, NY-12, has been lobbying states to sign onto the constitutional amendment, and introduced legislation doing away with a 1982 deadline for ratification, which some say disqualifies the new approvals.
“As we see attacks on women’s rights, autonomy, and bodies every single day from the Trump administration and the Republican Congress, passing the ERA is our strongest weapon to fight back,” Maloney said in a statement.
The language, which 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,” has been languishing in Congress since 1923. It passed both houses in 1972, but was not approved by two-thirds of U.S. states by an allotted deadline.
While New York signed on to the federal ERA decades ago, on a state level, patchwork laws and unequal protections under the state Constitution and New York’s civil rights law persist, in part, because New York has never amended its own Constitution.
“New York’s Constitution mentions different classes like race, creed and religion,” said Susan Harper, chair of the state Bar Association’s Women in Law Section. “If sex were in there, it’s possible that the evolution of cases, and how cases have played out over the years, would have been different, because our fundamental rights would have been enshrined in the Constitution.”
Eleven states, including California, Oregon and Illinois, have passed state ERAs pertaining to women. Without specific constitutional protections referring to gender, New York women are vulnerable on both the federal and state level, according to Harper.
“That’s the thing that is quite surprising to most people,” Harper said. “In New York, we are obviously the cradle for the women’s rights movement in this country. Having language in our state Constitution is really important, because for women, there is always a concern that someone can come in and roll back our rights.”
Excitement over the ERA has died down since the 1980s, in part, due to opposition from Phyllis Schlafly, a constitutional attorney and Conservative activist who died in 2016. Schlafly’s movement fought for traditional gender roles and propelled the notion that the amendment would have far reaching societal implications on everything from gender-segregated bathrooms to men-only military drafts.
Today’s Republicans are concerned that ratification would erode abortion restrictions and note that a series of U.S. Supreme Court decisions have ruled in favor of gender equality, citing the 14th Amendment which prohibits states from denying “equal protection of the laws.”
It’s painstakingly difficult to get a constitutional amendment passed in New York. The change must pass the Legislature twice and also approved by voters in a referendum. Now that Democrats control both houses, some lawmakers hope there will be momentum on a state level and are looking to apply ERA more broadly.
State Sen. Liz Krueger introduced a state constitutional amendment last year that would apply the equal protection to a wide range of protected classes, including the disabled and LGBT individuals, and “other immutable characteristics.”
“Transgender people are covered in some counties, in some activities, but not the state. Disabled people have federal protections,” Krueger said. “We are attempting a fairly global approach to address every possible situation.”
Of the states that have passed amendments, none explicitly granted equal rights to LGBT people or the disabled.
Inconsistent protections for various protected classes may become relevant when a person falls into more than one protected category. That was the case for a client of employment attorney Sarah Burger, who filed a workplace discrimination lawsuit on behalf of the African-American transgender woman.
“Very rarely does a client come in and say I think I was discriminated only because of my race or my gender,” Burger said. “If the standard and the law is different, then in order to resolve the issue I almost have to tear apart my client. It creates a very ridiculous situation.”
While Burger’s client was litigating the workplace discrimination case citing federal law, had she been suing the defendant on a state level, she said she would only have been able to secure attorneys fees for the gender discrimination, not the other categories.
There are also discrepancies between protections offered counties, cities and towns in New York, Burger said.
Burger, an executive board member with New York’s branch of the National Employment Lawyers Association, said revising the state’s human rights law to be consistent may offer a short-term solution.
“There are enormous disparities between state and federal human rights law, and huge disparities between state law and New York City’s civil code,” she said.