The U.S. Constitution protects religious freedom and prohibits discrimination based on race. But when it comes to protections for gender?
If you’re like most Americans, you probably thought the Constitution already guarded against sex discrimination. But you’re wrong.
Sex is not a protected class enshrined in our Constitution, and as this quote from former Supreme Court Justice Antonin Scalia demonstrates, the law is keenly aware of this:
“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.”
It’s true that Congress has passed several pieces of legislation meant to protect women against discrimination, such as Title IX, which outlaws discriminatory practices in education programs and activities.
But Congress could decide to change Title IX, to repeal or diminish its protections because, as Justice Scalia noted, there’s nothing in the Constitution that prohibits it. And if our current administration has proven one thing, it’s that the Constitution, not the individual in the White House or those in Congress, has the final say on what is and is not permitted by law.
So, how do we change this? How do we ensure gender discrimination is not left to the whims of elected officials?
Three words: Equal Rights Amendment
It’s been almost a century since women first attempted passage of a constitutional amendment for gender equality. Decades later, in 1972, Congress passed the Equal Rights Amendment and sent it to the states for ratification.
Within a few years, 35 of the 38 states needed to ratify the amendment had done so, leaving most of the southern states, including Arizona, as outliers. But the amendment withered, and decades passed without any additional states joining ratification.
Then 2016 happened. The #MeToo movement took hold. Nevada passed the ERA in 2017. Illinois followed suit a year later.
With just one state remaining, it’s looking like Arizona could be the state that cements sex equality into our Constitution and our state into the history books.
Hard to believe?
Arizona has definitely had its share of embarrassing headlines, but we’re also a state with a storied reputation of female leaders. We’re home to the nation’s first female Supreme Court Justice, Sandra Day O’Connor, who also happened to be the very first Arizona legislator to introduce a bill to ratify the ERA. We gave women the right to vote in 1912, eight years prior to the Nineteenth Amendment. Twenty years ago we elected all women to the state’s five highest offices, and we currently have two women representing us in the U.S. Senate.
So, what’s holding us back?
The success or failure of ERA legislation will rely largely on which committee (or committees) the bills are assigned to in each chamber of the Arizona Legislature. In the past, the mostly male-dominated Republican committee chairs have refused to give the bills a hearing, effectively killing the legislation without any discussion whatsoever. This shields legislators from having to go on the record in opposition to gender equality.
In the state Senate, two identical ERA bills are awaiting a hearing in the Judiciary Committee, which is chaired by Sen. Eddie Farnsworth, a known ERA foe. The bills, sponsored by Republican Sen. Michelle Ugenti-Rita and Democratic Sen. Victoria Steele, have enough co-sponsors to ensure passage if it gets past the committees and to a vote by the full Senate.
On the House side, Democratic Rep. Pamela Powers Hannley is still in the process of adding co-sponsors to her ERA bill, and again, those co-sponsors include both Democrats and Republicans, male and female.
But even with bipartisan support, there’s a huge risk the legislation will fail. Farnsworth seems to care little about what the majority of his senate colleagues want, and there is already a concerted effort by an anti-equality group to confuse and manipulate the true meaning of the bill.
This is what happened some 40 years ago. Outrageous arguments against equality scared enough state legislatures into believing the sky would fall if the ERA passed. Those decades-old arguments included fears the ERA would force men and women to use the same bathrooms or legalize same sex marriage or put women into combat or the draft.
Same sex marriage is legal, but not because of gender equality. The same goes for women serving in combat (thank you, Sen. Martha McSally), and though we do not have a draft in place, women could be forced to serve with or without the ERA.
The biggest scare tactic used to thwart gender equality is the notion the ERA is simply a tool to expand abortion access. But again, this is nonsensical. Roe v. Wade wasn’t decided on the grounds of equality but rather privacy, and it’s likely this particular issue will continue to be debated by Americans for decades to come, regardless of the amendment.
The language of the ERA is actually quite simple: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
This isn’t about abortion or unisex toilets or gay rights but rather about ending second-class citizenship for half of this country’s population.
The Legislature has an opportunity to do the right thing and be remembered by generations of women. It’s way past time to get this done.