Episode 3: What would the ERA actually do for women's equality?

Virginia just became the 38th state to ratify the Equal Rights Amendment. On the face of it, the ERA seems straightforward: "Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex."

Proponents want the ERA because of continuing sex inequality in our society. Lower pay, sexual harassment, violence against women. These are serious social problems that have been around for a long time.

But the ERA may not be the tool to solve them. So says our guest this week, UVA Law professor Kim Forde-Mazrui. He shares the overall goals of real equality for women, but he’s concerned that federal judges would hand down decisions that would actually harm the cause of equality for women.

Read the Transcript:

Nathan Moore  0:00: This is Bold Dominion: An explainer for state politics in a changing Virginia. I'm Nathan Moore. In this episode of Bold Dominion, the Equal Rights Amendment.

News Anchor 1  0:15  

Both chambers of the Virginia State Legislature passed the Equal Rights Amendment Wednesday, becoming the 38th state to pass the resolution.

News Anchor 2  0:23  

Attorney General Mark Herring announced he's suing the federal government in hopes of moving closer to adding the Equal Rights Amendment to the US Constitution.

Activist  0:31  

Only one way to spell equality, and that is simply E-R-A!

Nathan Moore  0:40  

For generations, women's groups have advocated for the Equal Rights Amendment as a profound way to end discrimination against women. Specifically, ending the legal distinctions between men and women when it comes to divorce, property, employment and other matters. On the face of it, the text of the Equal Rights Amendment looks pretty straightforward, even non-controversial, really. "Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex." But, as with all legal matters, it gets more complicated pretty quickly. There's a conservative argument against the ERA that's mostly based around places where privacy is important: locker rooms, public restrooms, dormitories, that kind of thing. Conservatives worry that there would be no more sex segregation in these places, the kind of sex segregation that protects privacy. Meanwhile, many liberals want the ERA because of continuing sex inequality in our society: lower pay, sexual harassment, violence against women. These are serious problems. And these social problems around women's equality issues have been around for a very long time. With a number of laws already on the books, how would these social problems change with an amendment to the Constitution?

Kim Forde-Mazrui  1:53  

They would not. The ERA would require government policies and law to ignore sex. That would mean that, first of all, efforts to promote sex equality would actually be more difficult.

Nathan Moore  2:06  

That's UVA Law Professor Kim Forde-Mazrui. He shares the overall goals of real equality for women. But he's also not in favor of the Equal Rights Amendment as it is now written. He's concerned that in the hands of conservative federal judges, decision sent down about the ERA could actually be used to harm the cause of equality for women. And he thinks both of those in favor and against the current ERA kind of missed the point.

Kim Forde-Mazrui  2:32  

Any attempts to address sex inequality by advancing women's access to previously underrepresented fields would arguably constitute favoring women at the expense of men. And so that could be interpreted to be discrimination on the account of sex against men. And that- that would apply actually only to government policies that would be designed to benefit women with respect to the concerns I just mentioned a moment ago. The problem there is the ERA just wouldn't address them at all, because they're in the private sector, for the most part, and the ERA would only prohibit government discrimination on account of sex. You would not address private discrimination at all in to the extent it affects government policy, you would actually inhibit government policies designed to reduce sex inequality.

Nathan Moore  3:21  

Why would this not have any bearing on- on some of those private policies like, say, pay discrimination?

Kim Forde-Mazrui  3:27  

The text says, "Equality of rights under law shall not be denied or abridged by the United States or by any state." So, it would prohibit, you know, a government employer-

Nathan Moore  3:39  

Right.

Kim Forde-Mazrui  3:40  

 -from discriminating, but that's actually already illegal. But with private companies, they just wouldn't be subject to it. They would only be answerable to legislation. And there actually already is legislation that prohibits discrimination on the basis of pay. The problem is that it's hard to prove in many instances, and also a lot of the sources of unequal pay are more social and structural, not based on intentional discrimination, like the fact that women continue to bear most of the family responsibilities, which tends to conflict with doing well in certain kinds of careers. And, again, the ERA would just not apply to that at all. The kind of more structural/cultural/social ways in which women are structurally disadvantaged... really require affirmative efforts to kind of change the way the employment world is structured. And, that requires not just a ban on discrimination, but actually affirmative policies to promote equal access. Not only would the ERA not require that in the private sector, but it would actually make it more difficult because the ERA would likely have an impact on how the courts interpret the legislations that apply to the private sector. So, for example, with race discrimination, race discrimination in the private sector is also not prohibited by the Constitution. The Equal Protection Clause also only applies to the government. But Congress in 1964 passed laws prohibiting race and sex discrimination in employment. And that included prohibiting policies that have a racially discriminatory effect, even if unintentionally. It's called "disparate impact." And the problem is, is the Supreme Court is increasingly viewing changing a policy because of its discriminatory effect as actually reverse discrimination. So I'll give you... maternity leave. Right now the Family Medical Leave Act requires unpaid maternity leave, there are proposals to require paid maternity leave. The purpose to provide maternity leave is to support women's access to the workplace. Under the ERA, any law that would require companies to provide paid maternity leave could be objected to by companies on the ground that that's discriminating against men, because it's focused on favoring women, and that disadvantages men. You could even change it to parental leave. The problem there is the Supreme Court has held that if you use a neutral policy, but it's still designed to benefit a group, then it's still discrimination. So, if they call it parental leave, but the purpose behind it is still to benefit women, then there would be an argument under the ERA that that's still discrimination against men. I know this is counterintuitive, but the Supreme Court has taken the Equal Protection Clause and interpreted it in this formalistic, colorblind -- is the metaphor -- fashion so that, in recent decades, the court has invalidated a lot of affirmative policies and laws that are designed to increase minority access to the workplace or to higher education.

Nathan Moore  7:05  

Well, I know the Roberts Court thinks that we hit some day of jubilee and that now everything is perfectly hunky-dory and we don't need to address anything anymore. Um, I'm being a little facetious, but not really.

Kim Forde-Mazrui  7:16  

You're exactly right that Chief Justice Roberts, you know, said in one case "the only way to stop discrimination on the basis of race is to stop discriminating on the basis of race." And his point was in striking down a school district's policy that intentionally integrated schools by taking the race of the student body into account. And so he said, "No, you can't do that." And he sort of implies that by taking race into account to assign schoolchildren, you're discriminating by race and that's the problem. That's what's perpetuating race discrimination in our society. Where, in fact, sometimes a certain type of discrimination is necessary to rectify other kinds of inequalities. And that's- that's what the school was trying to do by integrating schools- then children from different racial backgrounds are exposed to each other and that can actually break down stereotypes and improve race relations. And that, in the long run, they can actually eliminate social and structural barriers to- to racial integration in our society. But he thinks the solution is just to ignore race.

Nathan Moore  8:21  

Applied back to the Equal Rights Amendment, then. I'm reminded of, you know, folks I know who are involved in social justice work, who talk about the difference between equality and equity. There's those posters that are around where you get like, you know, three kids that are different heights. They're all standing on a box to see over the fence to see the baseball game and- and if they're all in the same box, that's equality, sure. But the short kids still can't see and the tall kid never needed the box in the first place. Whereas equity would give the short kid an extra box. I mean, is that kind of what we're seeing here with the Equal Rights Movement?

Kim Forde-Mazrui  8:54  

Yes, to use the common parlance, equality is being used in this very formalistic "Treat everyone the same; ignore the difference." Whereas equity is understood to mean: "take account of the difference in order to achieve substantive, actual equality." Currently, the- the law is formalistic for race, but for sex, the Supreme Court still prohibits most sex discrimination but does allow some equity-based policies that still prohibits all discrimination against women. But it does allow for affirmative action for women that it wouldn't allow for race. So it does allow equity for sex. And the problem is, is the ERA, the court will feel it has to interpret it in the same way in terms of race because the language is very similar. And my concern is that would actually be worse than the more lenient standard right now that allows for policies to help women but prohibits policies against women.

Nathan Moore  9:57  

Is that a product of just this generation of- of judges?

Kim Forde-Mazrui  10:04  

Partly, because it tends to be the approach by the more conservative justices. But at the same time, the justices, and the political process that results in appointing them, tends to reflect societal trends. And American society has become increasingly formalistic, in a sense, on both race and sex equality. I mean, it seems- it's increasingly unacceptable to describe men and women as different in meaningful ways. So- and in many instances, that's a good thing. To the extent the differences have tended to stereotype and limit women's opportunity. The problem is that you also need to be able to recognize differences that have been created by history and continuing patterns of discrimination in order to completely achieve equality.

Nathan Moore  10:59  

What I'm hearing, over the course of our conversation, is a sense that the goals of the Equal Rights Amendment, the intentions of the people who- who drafted it back in the 1940s and certainly got it to Congress in the 1970s and even the people who are proponents of it today, their- their intentions are good in trying to achieve, you know, positive outcomes for women in America. But the way the courts are structured today, this may be a "be careful what you wish for" situation.

Kim Forde-Mazrui  11:25  

That's exactly right. Yeah, it was proposed in 1923. No one in 1923 would have thought that equality on account of sex could be interpreted by courts to harm women, just like no one at that time, would have thought that requiring courts to invalidate laws that discriminate on the basis of race would harm blacks. In fact, in the Brown v. Board of Education litigation, the lawyers for the NAACP were arguing for colorblindness, they were saying what we're asking the court to do is tell schools to assign school children without regard to race. But soon thereafter it became evident that just stopping discrimination when there's already been inequalities created requires actually paying attention to race. And so you had like school busing and redesigning school zones and things like that to try and achieve integration, because just ignoring race now actually would just perpetuate the inequalities that were created. My goal would be to start over with an ERA that's more tailored to allowing policies to benefit women. And there have been proposals by legal scholars, by legislators. There are examples in European countries, like France and Germany, that have strong equality guarantees on the basis of sex, but they also have explicit provisions that say that government can, and in some cases must, promote equal access for women to careers, corporate boards, political institutions, and other provisions that allow or require support for family responsibilities.

Nathan Moore  13:03  

We're talking with UVA Law Professor Kim Forde-Mazrui about the Equal Rights Amendment, which Virginia just passed. You're listening to Bold Dominion, a state politics explainer for changing Virginia. Visit us online at bolddominion.org. Have a friend who's trying to figure out Virginia state politics? Tell him about this show, and then subscribe on Spotify, Apple Podcasts, and wherever fine podcasts are served up. Bold Dominion is a member of the Virginia Audio Collective, online at virginiaaudio.org. Whether you're into science and society, or Virginia history, or jazz or local news for Charlottesville or all kinds of things. We've got something you'll like. More than a dozen podcasts in production right now. That's virginiaaudio.org. Well, as of right now, the exact future of the ERA is unknown. When Congress approved the amendment back in the 1970s, and forwarded it to the states for ratification, it set a deadline of 1982. Obviously, we are many years past 1982 at this point, though there is some precedent for amendments being ratified after a long period of time. The most recent amendment, the 27th Amendment, was actually adopted after languishing for more than 200 years. But for now, the US Justice Department has issued a statement that the Equal Rights Amendment will not be taking effect. Virginia Attorney General Mark Herring and other state attorneys general have filed a lawsuit challenging that decision. In the second part of our show today, we return to UVA Law Professor Kim Forde-Mazrui. One of his concerns about the ERA is that it would actually make it harder to proactively achieve women's equality. That, in the hands of conservative court rulings, the ERA could prohibit any kind of affirmative government programs that could address women's access to social and economic equality. So, I mean, look, do conservatives get the kind of the case you're making here that actually this could, sort of somewhat paradoxically but nonetheless, make it harder to make changes that would, you know, improve the conditions of women?

Kim Forde-Mazrui  15:05  

The Conservatives I've communicated with -- I actually have emailed my thoughts to all the members of the Virginia House and Senate before they actually voted -- and I got responses from several on both sides of the aisle. And... all of them seem to miss the point that I want to make. The Conservatives cited the- more the privacy concerns about integrating, you know, having unisex bathrooms, even when they're, you know, large restrooms and the end to single sex education, unisex prison cells, and also abortion rights. And the- the Democrats tended to say no, I support it, I want my daughters to have equal pay in the workplace. And I think the conservatives concerns would be implicated by the ERA in the ways they fear. I don't- I think the court would probably find a way to allow some degree of sex segregation just because it's so embedded in our culture. But it would- it would be a question, but I think the Democrats have tended to just misunderstand that it would actually wouldn't have an effect on the things that they're concerned about.

Nathan Moore  16:20  

It sounds like you're looking two, three steps ahead, really, to like future court interpretations and some of the actual problems that could emerge. And we've talked in this conversation about how, you know, just stopping a discriminatory policy is not always enough, you actually have to like, affirmatively look at what's happening and affirmatively look at like, you know, how do we actually, you know, make it fair at the starting line, if you will. If the current Equal Rights Amendment isn't the way to do that, in your opinion, then what could be?

Kim Forde-Mazrui  16:47  

Well, there are the models that I mentioned in Europe. There's an excellent article by a law professor named Julie Suk called "Equal Rights Amendment For the 21st Century," and she surveys several European countries, she tends to emphasize France and Germany, but she points out many others that do have these provisions that make clear that equal rights, on the basis of sex, do not prohibit government from taking account of sex, if it's designed to promote equal access, or support family responsibilities. So I don't know that we would want to accept the language of those identically, but those could be models to look at. There's also been a proposal by two feminist scholars, one named Catherine MacKinnon, another name Kimberle Crenshaw, who had proposed an ERA that would also make clear that, you know, equality of rights shall be guaranteed on the basis of sex, but then it goes on to say that nothing in that provision shall be interpreted to prohibit government from taking affirmative efforts to break down, you know, societal barriers to achieving sex equality. So, that's what we need. I actually also have some concerns over any ERA, I think this ERA would make things worse, and there are ERAs, like I just suggested, that would actually benefit women's equality. But one concern I have is that a premise of an ERA is that a group has to be expressly recognized in the Constitution to be considered equal and guaranteed equality. And, my problem with that is there are many groups in society that are currently vulnerable to discrimination, and don't have the numbers that women have to be able to amend the Constitution to protect them. And under the current approach, the court can interpret equal protection which is guaranteed to all persons to reach other groups. So the Supreme Court initially assumed the Equal Protection Clause was only for the benefit of African Americans. But over history, it's interpreted to apply to other racial groups, other national origin groups, women, gays and lesbians. There's cases where the court has protected people with mental disabilities from discrimination, undocumented immigrant children from discrimination. And that's because the current Equal Protection Clause just says persons and leaves it to the court to interpret what groups are in special need of court protection. If the ERA says that in order for women to achieve true equality, they have to be expressly in the Constitution, then the message to the courts, and possibly to society as a whole, is you're not deserving of equality if you're not expressly protected in the Constitution, and then I fear for gays and lesbians, transgender people, people with various disabilities, people of low income who may experience unfair discrimination, but the courts may say, "Well, you're not in the Constitution so you don't get protection from the courts."

Nathan Moore  20:09  

What should we do about all this?

Kim Forde-Mazrui  20:11  

In the short term, defeat the ERA. If enough people tell their representatives in Congress that they're against it, then no law is going to pass that eliminates the deadline. So the short term is easy. The- the longer term is hard, and hard to articulate in any kind of precise way. I think for those who are dedicated to believing that an Equal Rights Amendment would be important in achieving sex equality, and notwithstanding the concerns I've raised, then look to the models I've suggested and draft a new one. And if there's really that much support in the country to pass the ERA, then a new one will pass in short order. But I also think that in the long run, what we really need to do is engage politically, to identify and argue for protections for groups that are especially vulnerable in our society today. And that's, that's not easy. But that's, in some ways, the- the only true way I think, to actually secure rights. People who have worked for decades to support the ERA, understandably, resist the idea that we should start over. And I want to say that, first of all, their efforts are not wasted. The political efforts to support the ERA have also translated into changing our culture to be less discriminatory against women and result in legislation that- that does advance women's equality, albeit inperfectly. And I would also say that...it's not worth achieving the goal of the ERA if, in fact, it makes things worse. And finally, I would say that be careful not to believe that we'll get this one passed and improve on it later. Some may have that sense, like, "Okay, maybe it's flawed in certain ways, maybe it won't achieve our goals as we think it would. But let's get it done. We're close. And then we can draft a better later." And not only do I think this would make it worse than the current law, I think it would also make it more difficult to pass a better one. The people would resist it and feel like we've already passed an ERA. These are just people who are dissatisfied because they didn't get exactly what they wanted. We shouldn't be cluttering up the Constitution with continuous amendments on the same topic. So I really think starting over is important both to avoid the harms of the ERA, but also to ensure a better likelihood of adopting a better ERA.

Nathan Moore  23:17  

Kim Forde-Mazrui is a Professor of Law at the University of Virginia. Well, my name is Nathan Moore, and I'm the host and producer of Bold Dominion. You can find this podcast online at bolddominion.org. Go ahead and subscribe, you know you want to. We've got some new assistant producers. I want to thank my assistant producer Aaryan Balu, as well as River Whelan for editorial assistance this week. In the next episode, we're previewing the Super Tuesday presidential primary vote coming up here in Virginia. I'll talk with you then, in two weeks.