Advocates Still Fighting for Equality on 19th Amendment Centennial

August 27, 2020 by Kate Michael
Tribute to women's suffrage in the U.S. Capitol rotunda. (Photo by Dan McCue)

WASHINGTON – Even as the White House was bedecked in gold and purple to commemorate the Centennial of the ratification of the 19th Amendment, activists and scholars continued to contemplate the ongoing fight for women’s equality.

On August 26, designated National Women’s Equality Day, the 50th anniversary of the Women’s Strike for Equality, and the aforementioned anniversary date for women’s voting rights, the progressive legal organization American Constitution Society convened a panel discussion of the movement for women’s equality both to celebrate the hard-fought gains and to take stock of what still needs to be done to achieve true equality.

The 19th Amendment to the United States Constitution prohibits the states and the federal government from denying the right to vote to citizens of the United States on the basis of sex, but panelists at the ACS discussion argued that women still strive for equality before the law for wages, reproductive freedom, childcare, education and employment opportunities. 

“The 400-year struggle has been, ‘How do we make government by, of, and for the people’ true for everybody?” said Virginia State Senator Jennifer McClellan, a Democrat, also notable for making history as the first pregnant Virginia Delegate to participate in a legislative session. “All of us need our perspectives heard if we’re going to achieve true equality.”

To this end, McClellan and others continue to push for passage of the Equal Rights Amendment, which has its own long and complex history. First proposed by the National Woman’s political party in 1923, the ERA was to provide for the legal equality of the sexes and prohibit discrimination on the basis of sex. Nearly 50 years later in 1972, the ERA was finally passed by the Senate and sent to the states for ratification, eventually given a deadline for ratification of June 30, 1982. In order to be added to the Constitution, the amendment needed approval by legislatures in three-fourths — or 38 — of the 50 states.

On January 15, 2020, well after that deadline had passed, Virginia became the 38th state to ratify the ERA. 

Virginia’s ratification does not necessarily mean that the ERA will be added to the text of the Constitution, however. For a number of reasons, the situation is complicated. The state has already entered a legal battle to overturn the ratification deadline set by Congress, but questions remain about whether states that previously attempted to rescind their ratification may mean the tally has not actually yet reached 38.

“The ERA was introduced on the heels of suffrage, and was meant to speak to the rest of what had been lost,” said Reva Siegel, professor at Yale Law School. She argued that the 19th Amendment was not intended to be about voting alone, but rather that it was meant to be more expansive in scope on women’s equality. 

“This provision… that looks like a nondiscrimination provision… was read as a formal rule stripped of the understanding of the struggles on which it was founded,” Siegel said. “But everyone who fought about the vote understood that family was at the center of it.” 

Julie Suk, a Yale Law professor, agreed that women are unequal in American society because of women’s familial role and childcare. Central to women’s equality demands, she said, is reproductive freedom and universal childcare, because an equality mandate would be empty if women didn’t have a place for children while working. So any discussion of women’s equality rights today and the “ability to seek laws that would better [women’s] lives” must parallel an understanding of reproductive rights and justice. 

“The ERA foundered because of confusion as to what it would actually do,” argued Suk, who said the opposition was largely due to divisions about labor rights. “I think there was a recognition that discrimination against women should stop… but opponents didn’t want to get rid of every sex distinction. They…wanted to preserve certain forms of distinctions… and thought there might be room for making sex distinctions to overcome gender bias.” 

“Some distinctions are needed to overcome oversights of the past,” said McClellan, citing an example of a favorable sex-based distinction. “There are many times when a man has a medical condition that requires work accommodation, and he gets it,” said McClellan. Prior to the Pregnancy Discrimination Act, women were not getting the same fair accommodation.

Affirmative action programs in the workforce, expanded in 1965 to include gender, have promoted female participation and advancement in the workforce.

Opponents of the ERA worry that its passage would wipe away any genre protections, like these work protections already in place. “They fear — and it’s a reasonable fear — that with the passage of ERA, those protections would be lost,” said Suk. 

But the continuing dispute also focuses on a new set of concerns. “Our conversation today is focused on a different set of issues than in the late ‘70s,” said Siegel, who points to the #MeToo movement, current empowerment needs, and new ideas about the definition of sex and gender bearing on the current call for equality. 

According to Siegel, “Opponents [of equality] struggle with what it would mean to have a truly gender-neutral identity, with sex equality and non-discrimination.” She narrows the issue to non-subordination (seen as removing male domination and patriarchy in institutions like voting rights, reproductive freedoms, and employment opportunities) versus true non-differentiation of gender.

“The 19th Amendment and ERA were the continuation of a long battle,” said McClellan, “[they] show how far we still have to go to make the ideals the country was founded on true for everybody.” 

She called on all women — of every race and generation — to take up the cause, though she warned that it might get intense. “We have to make sure that the second wave of freedom fighters for women’s rights reflects everyone,” McClellan said. “And it should come as no surprise that any time political, economic, and social power has been expanded to a new group, there has been a fight.”

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