The Slatest

Why Virginia’s Election Results Mean the Equal Rights Amendment Could Finally Pass

A marcher holds an "ERA YES" sign amid others holding pro-LGBTQ signs in the pride parade.
The 2017 Pride parade in San Francisco.
Elijah Nouvelage/Getty Images

Democrats swept the election in Virginia on Tuesday, flipping the state Senate and House of Delegates and giving the state a fully Democratic-controlled government for the first time since 1993. The results quickly led to renewed conversation about a somewhat unexpected legislative goal: the Equal Rights Amendment.

Here’s why—and what you need to know.

What is the ERA?

The Equal Rights Amendment, first proposed in 1923, would explicitly ban discrimination on the basis of sex and guarantee equality for women in the U.S. Constitution. It reads, in part: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

While there are certainly protections for women’s rights, many of them are federal laws (such as the Civil Rights Act, Title IX) passed by Congress, which could be undone by the passage of other laws or undercut by Supreme Court rulings. The 14th Amendment, which promises all citizens “equal protection of the laws,” is thought to include gender under current Supreme Court precedent, but some (notably the late Justice Antonin Scalia) have argued that its framers did not intend for it to include gender in its protections. A specific gender equality amendment would answer that question once and for all.

Proponents of the ERA contend that it would guarantee that states have to intervene in matters of gender-based violence and harassment, ensure protections for pregnant women and mothers, and guarantee equal pay.

Opponents commonly make two arguments. One is that ratifying the ERA is unnecessary because the country already has protections for women. The other is that more rigid language in the Constitution would erode privileges women have. In the early years, working-class activists worried that labor protections for women could be eliminated. In the 1970s, Phyllis Schlafly argued that the amendment would mean women would have to sign up for the draft or would no longer be allowed access to single-sex bathrooms. The current version of the argument is less rooted in the family values of white, religious, suburban housewives, but it uses a similar line of reasoning: The ERA could threaten assistance programs for women and mothers and accommodations for pregnant women.

Why didn’t the ERA pass already?

The suffragist Alice Paul wrote the ERA off the success of the women’s suffrage movement, but it failed to garner support from other activist groups, who were concerned about issues of race and class as well. The amendment died without making headway in Congress.

The movement was revived in the 1970s, and it was initially quite popular. The amendment passed in Congress in 1972, and 35 states swiftly ratified it. But Schlafly and her conservative Christian anti-feminist movement lobbied against it, stoking fears about the loss of traditional family values. Some conservative legislators balked, and the ERA fell three states short of ratification.

There have been repeated attempts at the state and federal level to reignite the campaign for the ERA, but it never picked up the momentum it needed—until (perhaps) recently. Some part of the current sociopolitical climate—President Donald Trump’s election, the #MeToo movement, the erosion of abortion rights and a conservative Supreme Court—has brought the issue to the fore and energized Democrats to push for women’s rights. In 2017, Nevada ratified the amendment. Illinois followed in 2018, leaving the movement one state short of the 38 needed to trigger the ratification process.

What’s Virginia’s role in this?

Virginia was not one of the states that quickly ratified the amendment. In fact, the state Legislature shot down proposed ERA ratification measures 10 years in a row in the 1970s and ’80s. But Virginia’s politics have changed in the past decade, culminating in Tuesday’s victories by Democrats.

Meanwhile, advocates in the state have been pushing for ERA legislation and made progress in a Republican-led Senate (but stalled in the House). It seems likely that a Democratic-controlled state Legislature will, early into its legislative session, approve the amendment.

That would bring the total number of ratifying states to 38—the crucial number needed to officially amend the Constitution.

What’s the catch?

Crossing that threshold would no longer mean automatic ratification. There are two major hurdles. One: The deadline set for approval has passed. Two: Some states have withdrawn their approval.

Neither issue is straightforward. ERA supporters argue that Congress could extend or overrule the 1982 deadline. (Some efforts to do this have previously failed.) Some supporters have also challenged the idea that there can even be a deadline for ratifying an amendment, a question that could be settled in court.

It’s also unclear what happens with the five states (Idaho, Kentucky, Nebraska, Tennessee, and South Dakota) that ratified the ERA in the 1970s but later withdrew their support. The Constitution doesn’t address the scenario, so it’s unknown whether withdrawing ratification is allowed. According to one leading voice in the ERA push, because those states rescinded the ratification in different ways (for some it was the governor, for some the legislature), each case would likely be evaluated separately to see if the decision stands. This sets up another potential court battle if Virginia ratifies the amendment.