Contrary to popular belief, the ERA is not dead

I grew up in a mixed home. My mom was a JFK Democrat and my dad was an old-school fiscal Republican. We were three very little kids who knew political arguments were as much a part of the dinner table as Hamburger Helper.

It was 1972 and the proposed Equal Rights Amendment (ERA) was on the ballot in states across the nation, including Pennsylvania. My mom voted for it. My dad voted against it.

We boycotted my father.

Fifty-two years later, even though my dad came around and Pennsylvania was among the early states to ratify the ERA, there is still no constitutional protection for America’s 170 million women and girls. The U.S. is nearly alone here — gender equality is included in 168 international constitutions, but not the United States’.

The U.S. is tied with Syria as the 10th most dangerous country in the world for women at risk of sexual violence, sexual harassment, and coercion into sex. That’s according to a 2018 Thomson Reuters Foundation survey of 550 experts in women’s issues. The U.S. ranked sixth for nonsexual violence such as domestic abuse.

Today, the jumble of laws and court decisions that call for gender rights and protections — from equal pay to gender-based violence to marriage equality — cannot guarantee those rights and protections. State and federal legislation can be repealed or replaced. And it is. Court decisions can be overturned or abandoned. And they are. Legal cases involving gender discrimination have less than a 50% chance of being won because they are not held to the same standard as cases involving discrimination based on race, religion, and ethnicity, which are protected by the U.S. Constitution.

Seems like the late U.S. Supreme Court Justice Antonin Scalia may have been right when he posited the Constitution does not prohibit sex-based discrimination.

There is a clear solution to the maddening fact that equal rights for more than half of our nation are not recognized in our Constitution. Contrary to popular belief, the ERA is not dead. In fact, it has passed its hurdles, and President Joe Biden has the authority to make the ERA the 28th Amendment. He must do so before he leaves office. A new poll shows Biden has very strong public support to do just that.

There is a clear solution to the maddening fact that equal rights for more than half of our nation are not recognized in our Constitution.

For any new constitutional amendment, the bar is high, and it should be. It requires two-thirds of Congress and three-quarters of the states to ratify it. Those requirements have been met. The ERA passed both houses of Congress and was ratified by the needed 38 states as of 2020. The 400,000-member American Bar Association agrees.

In his first term, President Donald Trump had the authority to instruct the national archivist to “publish and certify” the ERA, making it the 28th Amendment. Instead, his administration played politics. Now Biden has this historic opportunity to provide a critical foundational and constitutional basis to counter harms based on gender.

It will also help protect against some of the radical elements of Project 2025, like a national abortion ban, restrictions on contraception, overturning marriage equality, and protections for LGBTQ people.

We do not yet know what the Trump presidency will mean for women, girls, and the LGBTQ community. We do know all the laws we think ensure gender rights and protections are subject to changing political winds and whims, and those winds are gaining hurricane force.

Nicole Vorrasi Bates, founder and executive director of Shattering Glass, is one of the leaders in the push to pressure Biden. “People are waking up to the fact that we don’t have constitutional equality,” she told me. “After [Dobbs v. Jackson Women’s Health Organization], it’s clear any rights granted to us by statutes or court decisions could easily be taken away. In fact, there’s an imminent threat that more rights soon will be taken away by the Supreme Court and/or the incoming administration.”

My dad served in the army, my parents hung the American flag every Flag Day, and in the last presidential election in which he voted, my dad voted for the Democrat. The Republican Party was leaving him. If my dad was alive today, he would be appalled at the violation of civility, misogyny, and sex crimes that have defiled his party up and down the ballot. I know my dad would support President Biden in making the ERA a constitutional amendment. He would do it for his two daughters, his three granddaughters, and all of us whose rights remain at the whim of the patriarchy’s politics.

So here’s what I’m going to do, and it’s not a boycott this time.

I’m joining with people across the country, and we are flooding the White House with postcards, texts, calls, emails, petitions, and more, calling on Biden to use his legal and moral authority to finally affirm the ERA as the 28th Amendment. Everyone needs to pitch in. Our mandate is clear. And so is the president’s.

Susan K. Barnett is a former award-winning investigative journalist with “Primetime Live,” “20/20” (ABC News), and “Dateline NBC.” She is the founder of Cause Communications.