For Jennifer Carroll Foy, the fight against sexism started in high school.
Her class was watching TV coverage of the historic 1996 Supreme Court decision United States v. Virginia. In a famous majority opinion written by Justice Ruth Bader Ginsburg, the Court found that the previously all-male Virginia Military Institute — a prestigious military college in Foy’s home state — would have to admit women.
Foy agreed with the decision, but the boys in the class were outraged, she told Vox. Her male best friend even came up to her and told her that if she went to VMI, he would go too, because “I want to be there to watch you when you fail.”
“I told him, ‘Challenge accepted,’” Foy recalls.
They both went to the military college, but only Foy graduated — one of the first black women to do so. She went on to become an attorney and, in 2017, one of a historic number of women elected to the Virginia House of Delegates.
Now, in 2020, she’s the sponsor of a measure to ratify the Equal Rights Amendment, which would ban discrimination on the basis of sex, enshrining in the US Constitution the principle of gender equality that Ginsburg argued for in United States v. Virginia. To become law, the amendment must be ratified by 38 states. And on January 15, 2020, Virginia became the 38th state, with the ERA passing both houses of the state legislature.
However, there are still major legal and political hurdles to clear in order for the amendment to officially become law. But Foy believes that, now more than ever, there’s momentum in Virginia and around the country for enacting a constitutional change that’s been decades in the making. “Women are fed up,” she said, “and we’re now in positions of power.”
Virginia ratified the ERA. It’s just the beginning of another fight.
The Equal Rights Amendment is simple. Here’s the text:
Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.
But these few words have been wending their way through American politics for nearly 100 years, as Vox’s Emily Stewart writes. First introduced in 1923, it passed Congress with bipartisan support in 1972. But because it’s a constitutional amendment, it still had to be ratified by three-quarters of the states, or 38 out of 50.
Thirty-five states ratified the amendment quickly, but then momentum slowed, in part due to the work of anti-feminist advocates like Phyllis Schlafly in the mid to late 1970s. However, things have picked up again in recent years, with Nevada ratifying the amendment in 2017 and Illinois doing so in 2018.
Foy says the resurgence of interest stems from a combination of factors like the Women’s March, the Me Too movement, and the confirmation of Justice Brett Kavanaugh to the Supreme Court even after he was publicly accused of sexual assault. “Women are now understanding that none of our fundamental rights are really guaranteed,” she said.
Virginia also tried to ratify the amendment in 2018, but Republicans in the state legislature quashed the effort. In 2019, however, Democrats took control of the legislature for the first time in 20 years. And on Wednesday, the measure passed the House of Delegates and the state Senate. “In passing this resolution, we’re finally on record as supporting women’s rights as human beings, equal to men,” Foy said in a statement, “something that must also finally be enshrined in the U.S. Constitution.”
Ratification in Virginia, however, is far from the end of the fight over the ERA. Congress set a deadline of 1982 for states to ratify the amendment, meaning Virginia’s decision comes almost 40 years too late.
Democrats in Congress are working to remove this obstacle. In November, the House Judiciary Committee passed a resolution to eliminate the deadline, and it’s expected to pass the full House. But such legislation will have a harder time in the Republican-controlled Senate.
Meanwhile, some states are actively fighting the amendment. Last year, Louisiana, Alabama, and South Dakota filed a lawsuit in an effort to force the federal government to let the 1982 deadline stand. And President Trump’s Justice Department issued guidance earlier this month stating that Congress does not have the power to change the deadline. Whatever happens next, a court battle over the amendment is all but inevitable.
The ERA would guarantee gender equality in the Constitution for the first time
Despite the obstacles, advocates say the fight is crucial because the ERA would send an important message of gender equality to the entire country. Right now, the Constitution doesn’t explicitly address sex discrimination at all. The ERA would change that, Emily Martin, vice president for education and workplace justice at the National Women’s Law Center, told Vox. “It would, at the most fundamental level, recognize that gender equality is a foundational principle for the United States.”
There are laws on the books that ban sex discrimination in some arenas. The Equal Pay Act, for example, requires that men and women get equal pay for equal work. But, Foy noted, “laws can be changed just as easily as legislators change their minds”; a constitutional amendment is more permanent.
Moreover, a constitutional amendment would give people more tools when they challenge discriminatory laws or practices in court. Federal courts have interpreted the Equal Protection Clause of the 14th Amendment as conferring some protection against sex discrimination, Martin said. But adding an explicit ban on such discrimination in the Constitution would likely force courts to take the issue much more seriously.
People could use the Equal Rights Amendment to challenge anything from unequal pay to restrictions on abortion, Martin said. And it wouldn’t just affect women’s rights. By banning discrimination on the basis of sex, it could implicitly prohibit discrimination on the basis of sexual orientation and gender identity as well, offering protections to gay and trans people regardless of their gender.
Many legal scholars and LGBTQ rights advocates — including supporters of the gay and trans employees challenging discriminatory practices in three cases currently before the Supreme Court — have argued that discrimination against gay and trans people is, in essence, discrimination on the basis of sex. “This kind of discrimination is all bound up with each other,” Martin said.
Moreover, the effort to pass the ERA will bolster activism for gender equality around the country, Martin said. In recent years, “we’ve seen this need and hunger and energy around women’s organizing, around women demanding equality,” she explained. “The push for the Equal Rights Amendment is part of that and builds on that.”
And for Foy, her home state’s role in ratifying the amendment is especially meaningful. “Virginia has been on the wrong side of history so many times,” she said. “Virginia has fought against interracial marriage, Virginia has fought against desegregation, and Virginia fought against women’s right to vote.”
Things are changing in the state, and the historic number of women in the legislature is a big reason behind that change, Foy said. Now, Virginia can be the state “to put everyone on notice that women are here and we will be heard.”