Why Black Women Need the Equal Rights Amendment 

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Zakayi Thomas, President & CEO, ERA Coalition and Fund for Women’s Equality

Jennifer Tucker, Senior Advisor, Strategic Partnerships and Engagement, ERA Coalition

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

-Equal Rights Amendment introduced in Congress in 1923

This year marks the 100th anniversary of the Equal Rights Amendment (ERA), which prohibits discrimination on the basis of sex, first being introduced in Congress, and we have never been closer to having sex equality guaranteed in our Constitution. Fully 72 to 80 percent of people in the United States think the Constitution already prohibits sex discrimination or believe it should. But it does not!  

Virginia became the 38th state to ratify the ERA in January 2020, meeting all requirements under Article V of the Constitution to amend the document. The other prerequisite was previously satisfied when two-thirds of the House of Representatives and the Senate voted to pass the ERA in 1972 before it could be sent to the states for ratification.             

The ERA would give Black women legal support for existing and future laws to go deeper than they currently can to ensure sex equality. Black women facing intersectional discrimination based on race and LGBQT+ status can expect the ERA to improve employment and educational opportunities; provide recourse against gender-based violence; and improve access to health care, including reproductive and maternal care. These statistics highlight the urgent need for constitutional sex equality for Black women:

  • Black women face a pay gap, earning 63 cents for every $1 earned by white non-Hispanic men, at a wider rate than even the 82 cents earned by all women. 
  • Black women experience intimate partner abuse at a rate of about 40 percent;  significantly higher than the rates reported by white women (31 percent), Hispanic women (30 percent) or Asian Pacific Islander women (15 percent). 
  • There are 700 pregnancy-related deaths in the U.S each year, with Black women three times more likely to die from a pregnancy-related cause than white women. 
  • Nearly 14 percent of Black women are uninsured, compared to eight percent of white women and women between the ages of the ages of 18 and 64 were least likely to be covered. 
  • Black transgender women face additional discrimination due to gender identity, with an unemployment rate of 26 percent, twice as high as that of transgender people of all racial and ethnic backgrounds and four times as high as the unemployment rate in the general population. A full one-third of Black transgender people have households with incomes less than $10,000 per year; and nearly half of all the Black population has attempted suicide.  

Black women leaders have been key strategists and vocal supporters of gender justice and the Equal Rights Amendment since the early days of the women’s and civil rights movements. By the 1970s, 60 percent of Black women supported the ERA. Civil and women’s rights attorney Pauli Murray was one such leader who believed that Black women would benefit the most from the ratification of the ERA, and she wrote: “Implicit in the amendment’s guarantee of equality of rights without regard to sex is the constitutional recognition of personal dignity which transcends gender”. Murray well understood intersectionality long before the term was coined to depict the human experience, especially that of Black women, and this insight influenced her lifelong work and is an important part of her legacy. 

Many credit Murray’s genius and tenacity for inclusion of “sex” in Title VII of the Civil Rights Act of 1964 along with “race, color, religion and national origin. A few years later, Congresswoman Shirley Chisholm said in support of the ERA, “It [the ERA] provides a legal basis for attack on the most subtle, most pervasive and most institutionalized form of prejudice that exists. Discrimination against women, solely on the basis of their sex, is so widespread that it seems to many persons normal, natural and right.”  

Black women state legislators led the successful legislative campaigns in Nevada (2017), Illinois (2018) and Virginia (2020) that resulted in the final necessary states to ratify the ERA.

These women know that the ERA is an important and crucial tool for Black women’s enjoyment of “life, liberty and the pursuit of happiness”. 

In 2023, for the first time ever, a Black woman, Congresswoman Ayanna Pressley, introduced a resolution affirming the validity of the ERA’s ratification with co-leads: Congresswomen Madeleine Dean (PA-04), Sylvia Garcia (TX-29), Abigail Spanberger (VA-07), Cori Bush (MO 01), and Sydney Kamlager-Dove (CA-37). Senator Ben Cardin introduced the bi-partisian companion bill in the Senate with Senator Lisa Murkowski as the co-lead.

While this legislation would help remove any question around the time limit it is not necessary for the ERA to be added to the Constitution. The ERA, having been ratified by three-fourth of the states (38 states), could be published today by the U.S. Archivist in the Constitution as the 28th Amendment. Unfortunately, this has not happened largely because of a Trump-era memo issued by the U.S. Department of Justice’s Office of Legal Counsel (OLC). This memo says the 10 year time limit for ratification that was imposed in 1972 when the bill was passed was valid.  In 2022, the OLC, during the Biden Administration issued a rebuttal memo saying that Congress has the authority to remove the time limit, just as it had the authority to impose it in the first place.

On the last day of Black history month and on the eve of women’s history month, on February 28, 2023, the Senate Committee on the Judiciary convened its first ERA hearing in nearly 40 years to move forward toward a vote in the Senate to enshrine sex equality into the Constitution. 

Illinois Lt Governor Juliana Stratton testified about the ERA’s economic implication for women, especially women of color, and said, “Recent events have shown us all too well how easily decades of progress can be erased when our rights are not guaranteed by the Constitution.”  It is true that women and persons in the LGBTQ+ community are not fully protected against sex discrimination by our Constitution. 

We are pursuing multiple strategies. In addition to the Congressional resolutions, President Biden can order the Archivist to publish the ERA as the 28th Amendment. ERA opponents would be happy to litigate this option all the way to the Supreme Court, which is stacked with Justices who adhere to Scalia’s originalist theory, which is a non-starter for the ERA. 

The ERA supporters comprise a movement of movements. We are strong and growing stronger and more diverse each day. We are not giving up or giving in to victory!