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The drive to ratify the Equal Rights Amendment, explained

Virginia is about to ratify the amendment. Here’s what that means for the country.

www.vox.com|Anna North

For Jennifer Carroll Foy, the fight against sexism started in high school.

Her class was watching TV coverage of the historic 1996 Supreme Court decision United States v. Virginia. In a famous majority opinion written by Justice Ruth Bader Ginsburg, the Court found that the previously all-male Virginia Military Institute — a prestigious military college in Foy’s home state — would have to admit women.

Foy agreed with the decision, but the boys in the class were outraged, she told Vox. Her male best friend even came up to her and told her that if she went to VMI, he would go too, because “I want to be there to watch you when you fail.”

“I told him, ‘Challenge accepted,’” Foy recalls.

They both went to the military college, but only Foy graduated — one of the first black women to do so. She went on to become an attorney and, in 2017, one of a historic number of women elected to the Virginia House of Delegates. Now, in 2020, she’s introducing a measure to ratify the Equal Rights Amendment. The amendment would ban discrimination on the basis of sex, enshrining in the US Constitution the principle of gender equality that Ginsburg argued for in United States v. Virginia.

To become law, the amendment must be ratified by 38 states. Since 37 have already done so, ratification in Virginia would put the amendment above the threshold.

There would still be major legal and political hurdles to clear before the amendment could become law. But Foy believes that now more than ever, there’s momentum in Virginia and around the country for enacting a constitutional change that’s been decades in the making. “Women are fed up,” she said, “and we’re now in positions of power.”

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Foy says the resurgence of interest stems from a combination of factors like the Women’s March, the Me Too movement, and the confirmation of Justice Brett Kavanaugh to the Supreme Court even after he was publicly accused of sexual assault. “Women are now understanding that none of our fundamental rights are really guaranteed,” she said.

Virginia also tried to ratify the amendment in 2018, but Republicans in the state legislature quashed the effort. In 2019, however, Democrats took control of the legislature for the first time in 20 years. Now, with Democrats in control, Foy is confident the measure will succeed. “It’s not a question of if the Equal Rights Amendment will pass in Virginia, it’s just when,” she said.

Ratification in Virginia, however, won’t be the end of the fight over the ERA. Congress set a deadline of 1982 for states to ratify the amendment, meaning Virginia’s decision would come almost 40 years too late.

Democrats in Congress are working to remove this obstacle. In November, the House Judiciary Committee passed a resolution to eliminate the deadline, and it’s expected to pass the full House. But such legislation will have a harder time in the Republican-controlled Senate. To complicate things further, President Trump’s Justice Department issued guidance this week stating that Congress does not have the power to change the deadline.

Meanwhile, some states are actively fighting the amendment. Last year, Louisiana, Alabama, and South Dakota filed a lawsuit in an effort to force the federal government to let the 1982 deadline stand. Whatever happens with that particular suit, a court battle over the amendment is all but inevitable.