Fair Pay and the Equal Rights Amendment

Cross-posted on Female Impersonator

On behalf of Blog for Fair Pay Day, I reflected on the considerable resistance to legally prohibiting sexism in the work place. There are several acts and amendments being considered by our legislators, one of which is the Lilly Ledbetter Fair Pay Act briefly covered in Lindsay's post.

However, when I was first informed of this "Blog for Fair Pay" event, I did not think of the Fair Pay Act; I did not even know it existed. What immediately came to mind is the Equal Rights Amendment (ERA), which has been introduced in every session of Congress since 1923. If passed, our 28th Amendment would read:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Our 110th Congress (2007-2008) has introduced the amendment as S.J. Res. 10 and H.J. Res. 40.

This amendment, over eighty years in the making, would finally grant women equal rights in all legal matters as guaranteed by the federal government. Currently, various states do grant various legal protections by law, but the fact remains that not only is there no federal amendment barring discrimination by sex and not since 1972 has the amendment passed both houses of Congress.

The federal ERA would prohibit states from restricting state-funded abortions differently from other "medically necessary" procedures sought by men. This interpretation of the ERA was upheld in 1998 when the New Mexico Supreme Court found that the state's ERA required that Medicaid pay for abortions. Justice Minzer ruled:

New Mexico's Equal Rights Amendment requires a searching judicial inquiry to determine whether the Department's rule prohibiting state funding for certain medically necessary abortions denies Medicaid-eligible women equality of rights under law. We conclude from this inquiry that the Department's rule violates New Mexico's Equal Rights Amendment because it results in a program that does not apply the same standard of medical necessity to both men and women, and there is no compelling justification for treating men and women differently with respect to their medical needs in this instance.

Furthermore, opponents have argued that an ERA would require the legal recognition of same-sex marriages because the amendment would prohibit any legislation that bars participation from a legal contract on the basis of gender. Other considerations that have defeated the bill are claims that an ERA would draft women, prohibit same-sex schools, and require that women serve on the front lines of the armed forces.

It is instrumentally important that we urge our legislators to pass the federal ERA, especially if the amendment could finally guarentee women's right to contraceptives and abortion once and for all. Luckily, twenty-one states already have an ERA on the books: Alaska, California, Colorado, Connecticut, Florida, Hawaii, Illinois, Iowa, Louisiana, Maryland, Massachusetts, Montana, New Hampshire, New Mexico, Pennsylvania, Texas, Utah, Virgina, Washington, Wisconsin, and Wyoming. Unfortunately, twenty-nine states, despite attempts, do not have an ERA, including my home-state of lovely Arizona (one of the few states that did not ratify the federal ERA when it passed both houses in 1972).

Today, as we reflect on the necessity of Fair Pay, and our outrage that income is still so variable upon gender and race, we should remember that not only have some legislators curtailed our right to object to unequal pay, they have defeated the ratification of an amendment that would grant us equality under law repeatedly for over six centuries.