Athletes in Law Special Issue

In 1971, when Rep. Martha Griffiths proposed adding an Equal Rights Amendment to our Constitution, I was three years old. The proposed amendment stated: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

Had I been old enough to have an opinion in 1971, I might have supported the ERA. At that time, it was still lawful to deny women credit, to refuse to sell or rent housing to women, and to bar women from certain schools or fields of study. Sexual harassment was common and not unlawful. Millions of Americans, including my mother, supported the ERA as a solution to these problems.


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In 1972, Congress sent the ERA to the states for ratification by three-fourths of the states within seven years. Thirty-five (of the required 38) states quickly approved it. But opponents soon mobilized, pointing out that the ERA could backfire on women by requiring them to register for the draft and jeopardizing government programs that provide women certain benefits. Many supporters began to think twice about using the constitution to end sex discrimination, and legislatures in Idaho, Nebraska, Tennessee, Kentucky, and South Dakota soon rescinded their ratifications. No other states approved the proposed amendment before the deadline expired.

In America today, men and women are legally equal.

The ERA died. But American women nevertheless achieved full equality under the law.

In 2023, it is illegal to deny women employment, equal pay, housing, credit, or educational opportunities on account of sex. Pregnancy discrimination and sexual harassment are unlawful too. And public policies that treat one sex less favorably than the other are unconstitutional under the Equal Protection Clause of the 14th Amendment to our Constitution.


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Today, there is nothing my three daughters are prohibited from doing on account of sex. Indeed, so much has changed since the 1970s that even the late Justice Ruth Bader Ginsburg believed that, “[t]here is no practical difference between what has evolved and the ERA.”

In addition to significant changes in law (or some might argue because of them), women have achieved enormous social, economic, and political success in the past half-century. Women today are better educated than men, outnumber men in both law school and medical school, and outnumber men in the college-educated labor force. In 1972, women held only 20 percent of managerial positions; today we hold approximately 52 percent of them. Today, women control over half the wealth in the United States. And, while women are not a majority of U.S. political officeholders, women exercise significant political power, as we are both more likely than men to be registered to vote and more likely than men actually to vote.

Perhaps most importantly, American society now fully embraces the principle that women and men deserve equal access and equal opportunity.

It’s baaaaaaaaaack.

Despite these changed circumstances, progressive activists nevertheless want to resurrect the ERA. They claim that the ERA was, in fact, ratified as the 28th Amendment when the state of Virginia approved it in January 2020, four decades after it expired. (Nevada and Illinois voted in favor of the ERA in 2017 and 2018, respectively). Notably, the activists want to count approvals by these three latecomers but ignore the rescissions by Nebraska, Tennessee, Kentucky, and South Dakota, all of which took place before the amendment expired.


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The U.S. Archivist, whose job it is to publish constitutional amendments, rejects this assertion, as has every federal court to consider the matter. So ERA proponents have taken their case to Congress, asking it to lift retroactively the deadline it imposed on the states for ratification.

What’s the point?

In 2023, the ERA is unnecessary. So, why are its supporters so determined to shoehorn it into the Constitution?

Some believe it is important symbolically for our Constitution to recognize sex equality. But our governing charter is already sex neutral. And there is simply no compelling reason to add the ERA, simply so women feel acknowledged or “seen.” (Were acknowledging certain groups or demographic characteristics the goal of constitutional amendment, a country as diverse as ours would be amending our Constitution every year.)

More likely, modern-day proponents of the ERA want to layer it on top of current law in order to achieve something above and beyond our current anti-discrimination regime. What that something might be is anyone’s guess. But based on legal briefs filed by ERA proponents, it is likely to include all sorts of unpopular policies, such as requiring statistical parity between men and women in all government-funded activities, compelling schools to include biological males on women’s sports teams; mandating federal funding of abortion; and forcing prisons to allow male offenders who identify as women to transfer to women’s facilities.

Progressives know that policies such as these lack popular or legislative support. So they offer unsuspecting Americans a Trojan horse: the entire woke agenda wrapped up and hidden inside the golden promise of “equality.”

Their trick won’t work. Millennials and Gen-Z know that the ERA isn’t necessary today. And they are unlikely to look kindly upon a Congress that cuts them out of the process by short-circuiting the constitutionally-required Article V requirement that amendments to the Constitution have the support of large super-majorities of the American people.

Americans know that the ERA expired in the era of Charlie’s Angels, disco, and the Iran Hostage Crisis. If they want to adopt it now, Congress must, in the words of the late Justice Ruth Bader Ginsburg, put it “back in the political hopper” and start again.

Jennifer C. Braceras

Jennifer C. Braceras is the director of Independent Women’s Law Center at Independent Women’s Forum. A former member of the United States Commission on Civil Rights, Jennifer is an expert on Title IX of the Education Amendments of 1972, and has taught courses on civil rights and constitutional law at both Boston College Law School and Suffolk University Law School. She writes and speaks widely on issues related to civil rights, civil liberties, and other aspects of constitutional law. Jennifer is a graduate of the Harvard Law School, where she served as an editor of the Law Review.

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