Raising the ERA From the Dead? | Opinion

On Tuesday, Rep. Ayanna Pressley (D-MA) and Sen. Ben Cardin (D-MD) tried to raise the dead. The two lawmakers introduced a joint resolution declaring the Equal Rights Amendment—the source of a political fight in the 1970s most Americans have long since forgotten—ratified and ready to become the 28th Amendment to the U.S. Constitution/

Legally, the resolution is dubious. By extending the time limit indefinitely from its ratification battles in the 1970s, proponents are essentially arguing that no constitutional amendment can ever be definitively rejected by the American people—rather, they are only placed on ice until a successive generation decides to pick it up again. This makes a mockery of the Article V constitutional process. It posits that amendments to the highest law of the land can be passed in piecemeal fashion, without ever securing a bare majority of the country's current voting population—let alone the supermajority that Article V requires.

A substantial majority of eligible voters today have had no opportunity at all to weigh in on the ERA, considering they were either not born or were under the age of 18 when the nation weighed its passage 50 years ago. Only three states have ratified the ERA with the current electorate. Even one of the ERA's most fervent advocates, the late Supreme Court Justice Ruth Bader Ginsburg, told activists they needed to "put [it] back in the political hopper" and start over.

But even worse than procedural loopholes the size of a Mack truck is the substance of the amendment itself.

There are no constitutional rights today that are limited to men and denied to women; women enjoy the rights to speech, religious liberty, due process, and more on equal terms with men. In addition, federal and state law in all 50 states bars unfair discrimination on the basis of sex. Put simply, passing the ERA would add nothing to the legal protections already in place. Instead, the amendment would enshrine a radical and dangerous new standard: barring any law or government agency from recognizing the reality of biological sex differences.

Women and girls rely on the law's ability to distinguish them from men and boys in a myriad of ways in everyday life. Even under existing expansive Supreme Court precedent, the law is not required to ignore the very real biological differences between males and females when they are relevant. Acknowledging our biology is the basis upon which millions of women and girls are able to take advantage of opportunities, compete fairly, and be physically safe.

It is more obvious than ever that separate women's prisons, bathrooms, locker rooms, and sports teams are necessary to ensure a bare minimum standard of safety; many of these situations are already the source of fierce cultural battles, as biological males identifying as female demand access to women's spaces.

The ERA could make these battles over self-identification obsolete. Under the ERA, which demands the highest "strict scrutiny" judicial review standard for any disparate treatment of men and women whatsoever, Lia Thomas wouldn't have to identify as a woman in order to swim on the women's team; Thomas would simply have a constitutional case for admittance as William. Furthermore, unabashedly male rapists are kept out of female prisons only by a "discrimination on the basis of sex," which the ERA flatly prohibits. Similarly, a female traveler who requests that a female TSA agent conduct an intrusive body search requires the government agency to "discriminate" against male agents. And hundreds of programs designed to support or increase female representation or comfort in fields inside and outside of the government, such as WIC benefits directed specifically at mothers of young children, or grants for battered women's shelters, would be on the chopping block.

Men and women are already equal under the eyes of U.S. law. But the law does not currently demand that legislatures and courts close their eyes to meaningful biological differences and dogmatically declare that observing any distinction between the sexes is unconstitutional. Instead, the courts allow some room for the American voting public—an electorate with a majority made up of female voters—to individually assess whether a law unfairly discriminates on the basis of sex, or whether the law is simply recognizing the reality of biological sex differences in a particular circumstance where those distinctions matter.

By prohibiting public policymakers from ever taking into account biology and sheer common sense, ERA proponents would use a dead amendment to deny opportunities and privacy to women and girls, and even place their very safety in jeopardy. We must not allow that to happen.

Inez Stepman is a senior policy analyst at Independent Women's Forum.

The views expressed in this article are the writer's own.