Opinion: The closing window for women

By AMY VIRGINIA EVANS and MONICA CIOLFI

Published: 12-05-2024 9:17 AM

Amy Virginia Evans is an author whose latest novel, “Debriefing Darly,” explores the impact of the Women’s Movement. Monica Ciolfi is a lawyer and reproductive rights activist. Both women live in Concord.

Voters have decided against electing America’s first female president. There will be no grand inaugural celebrations welcoming a woman as the leader of the free world. Girls will see no symbolic role-modeling of equality at the highest level. Women will not witness the elevation of public policies like pay equity and reproductive justice.

Instead, we likely face dark days ahead and the further erosion of women’s rights in areas of domestic violence, equal compensation for labor, and the assurance of basic bodily autonomy. Proportional representation at the executive decision-making levels of corporate America must also await another day. Instead of installing as our president a towering champion of women’s equal status, Americans have chosen a misogynist and sexist to lead the next national conversation on gender.

Few Americans realize that a constitutional guarantee of equality of the sexes already exists as the law of the land. It is named the Equal Rights Amendment and was first introduced in 1923. Overwhelmingly passed by Congress in 1972, and ratified by 35 states by 1978, the amendment then hit a brick wall named Phyllis Schlafly and the Stop ERA movement.

More than 40 years later, the 28th Amendment to the U.S. Constitution became effective on January 15, 2020, when the 38th state, Virginia, voted to ratify it, thus satisfying the Constitution’s last remaining requirement for adoption.

There is a reason few of us realize we have an ERA: Republican obstruction. After Virginia ratified the amendment, President Trump’s Department of Justice intervened to block the National Archivist from formally publishing it in the Federal Register. His is the only presidential administration in American history to block an amendment duly ratified by its citizens.

Since 2020, there has been inconclusive litigation and numerous Democratic-led congressional efforts to finally and formally recognize the ERA. Supporters of the amendment endeavored to fight off Republican arguments that deadlines had not been met or that ratifications had been revoked. All efforts to finalize the ERA were thwarted by a GOP opposed to constitutional protections against sex discrimination by the government.

Against this backdrop, the nation’s largest legal organization, the American Bar Association, decided to step into the breach and set the record straight. On August 6, 2024, the ABA adopted Resolution 601, which found that all the judicial and congressional dithering about deadlines and revocations had no merit. The ABA declared instead that the absence of the purely ministerial act of publishing the amendment must not prevent the ERA from taking effect.

In its 21-page issuance, replete with citations and footnotes, the ABA concluded that all the requirements for amending the Constitution set forth in its Article 5 had been met. It urged “the legal community as a whole to implement the ERA.”

Fast forward three months to Nov. 6, 2024. We awake to a president-elect openly and actively hostile to gender equality. We have witnessed one cabinet appointee after another with either a personal history of sexual assault or a strong alliance with Project 2025, a manifesto brimming with gender-discriminatory policies.

Here we are: on the one hand, the ABA tells the nation’s 1.3 million lawyers to implement the Equal Rights Amendment, while on the other, our president-elect is poised to swing a wrecking ball at what is left of gender justice in America, post-Dobbs.

Fortunately, there is a solution. As the nation’s chief executive, President Biden can direct the National Archivist to perform the ministerial task to formalize what has been substantively and legally accomplished: publish the ERA. As the most powerful lawyer in the land, Joe Biden can heed the ABA advice, thereby sealing his most consequential legacy, simply by directing a stroke of the pen, as it were.

Advocacy organizations and Democrats have begun to urge President Biden to do just that before he leaves office at noon on Jan. 20. They call on him to memorialize the words that will surely alter the course of history: “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.”

We might all want to weigh in as the window closes on the future of being female in America. It would be a shame to have to wait another hundred years.