ERA Could Further LGBTQIA+ Legal Protections

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Only four states voted for new state legislators on Nov. 5, but this election could mean a major change for the U.S. Constitution. With the Virginia legislature flipped blue, the Equal Rights Amendment (ERA) might be ratified after 96 years. 

With decisive victories in both houses, Virginia’s General Assembly has Democratic control for the first time in 26 years. A House of Delegates bid to ratify the ERA fell one vote short of passing in January, but with nine newly Democratic seats, Virginia is poised to ratify. Last week in Washington, the House Judiciary Committee resolved to eliminate the ratification deadline. Roadblocks are clearing, and change is on the horizon.

What is the ERA?

The ERA would clarify the legal status of women’s rights protections under the Constitution. As it stands, the Constitution only explicitly guarantees women the right to vote. 

U.S. Supreme Court Justice Ruth Bader Ginsburg worked in the ‘70s and ‘80s to expand the 14th Amendment’s equal protection clause to prohibit sex discrimination. ERA proponents say the 14th Amendment doesn’t stretch far enough to address gender violence, pregnancy and motherhood discrimination and equal pay. The ERA’s ratification would also carry symbolic weight. 

“Just like freedom of speech [and] freedom of the press, a fundamental tenet of our society should be the equal citizenship stature of men and women,” Justice Ginsburg said to the National Women’s Party on Women’s Equality Day 2018. “That’s what the Equal Rights Amendment would do.”

Suffragist Alice Paul wrote the ERA after the 19th Amendment’s enactment, introducing it to Congress in 1923. The amendment was reintroduced every year until it passed in 1972. 

The amendment was ratified by 22 of the required 38 states in its first year. But the work of conservative activist Phyllis Schlafly and STOP ERA curtailed its momentum by arguing the ERA would strip women of their femininity and morality — some states even tried, unsuccessfully, to rescind their ratification.

With an extended deadline and 38th ratification in sight, the ERA is gaining momentum once again.

How Would it Affect the LGBTQIA+ Community?

The victories of the LGBTQIA+ community are victories for equal rights and the ERA. STOP ERA stoked fear around same-sex marriage and unisex bathrooms. With the Obergefell v. Hodges decision and increase in gender-neutral bathrooms, these arguments now fall short.

The ERA would increase protections for trans individuals. Georgia’s Glenn v. Brumby ruled discrimination against a trans individual is sex discrimination, setting a precedent that would be protected under the ERA. Other decisions have found discrimination on the basis of sexual orientation to be sex discrimination.

This October, the Supreme Court heard three major LGBTQIA+ discrimination cases. We won’t know the outcomes for months, but if the court rules against the plaintiffs, LGBTQIA+ protections would be erased and sex discrimination rulings would be subverted. The ERA would serve as another line of defense should this happen.

How to Support the ERA

A few steps remain before the ERA finds its place in the Constitution. Here’s what you can do.

  • Urge Congress to follow the Judiciary Committee’s lead and eliminate the ratification deadline. Tweet using #NoDeadlineOnEquality or write your representatives!
  • Educate people. Spread what you know with the hashtags #ERANow and #RatifyERA.
  • Donate to the ERA Coalition.