the complete story

Abortion access is legal in the United States, and the Equal Rights Amendment would not alter that. The amendment will not change the existing Constitutional framework under Roe v. Wade[1] and Planned Parenthood v. Casey.[2] Under current law, the right to access abortion procedures is grounded in constitutional privacy rights, not equality rights.[3]  

Some have argued that the Equal Rights Amendment will serve as a basis for challenging restrictions on abortion procedures, but that basis already exists. In the words of Justice Ginsburg, legal challenges to undue restrictions on abortion procedures “center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”[4] As recently as 2016, in Whole Woman's Health v. Hellerstedt, the Supreme Court ruled that Texas could not place restrictions on the delivery of abortion services that create an undue burden for women seeking an abortion.[5]

Some have argued that the Equal Rights Amendment is a Trojan Horse encapsulating abortion rights. But, with or without an Equal Rights Amendment the Supreme Court continues to rule that restricting abortion access is unconstitutional. Proponents of this argument refer to cases where courts required states to pay for “medically necessary” abortion procedures if the states paid for all other “medically necessary” procedures.[6] In other words, under these decisions, a state cannot have a policy of covering all medically necessary procedures and then single out for exclusion medically necessary procedures that pertain only to women. These decisions do not rule on the legality or illegality of abortion procedures.

The Equal Rights Amendment will not operate in a vacuum. As is so often the case, courts and legislatures will have to balance competing rights, much as the Supreme Court in Roe balanced the right to privacy against states’ obligations to protect the health of its citizens. There are 24 states that have equal rights amendments. In none of those states is abortion-on-demand without restrictions the law of the land. That scenario will not play out on the national stage, either. 

The Equal Rights Amendment will provide a basis for curbing pregnancy discrimination and the incidence of miscarriages caused by failure to accommodate pregnant women’s health needs.

In contemplating abortion, we should not forget about the miscarriages caused by women’s having to work without their employers’ accommodating their health needs as instructed by their physicians.

Women who need to keep their jobs are sometimes forced to choose between performing their usual functions and complying with their physicians’ care instructions. The results can be devastating, with women miscarrying while at work.[7] 

Under the current legal framework, without the Equal Rights Amendment, judicial relief for women who seek work accommodations on account of pregnancies require that women prove they were being treated differently than men who were similarly situated. This standard is virtually impossible for women to meet. To illustrate, a workplace policy that limits the employer’s obligation to accommodate an employee’s injury only if the injury originated at work will not give rise to an equal protection claim for failure to accommodate limitations due to pregnancies. 

The Equal Rights Amendment will prohibit the federal and state governments from discriminating on the basis of sex. With this mandate, government agencies should provide a new legal framework in which women who require accommodation because of pregnancy no longer have to choose between work and bearing children. 

Although the Equal Rights Amendment relates only to government – as opposed to private sector – action, we believe the solutions the amendment provides in the public sector will translate to voluntary changes in the private sector. The state and federal governments are outsized employers, and, as such, how they act will have a great impact on the employment market. With the largest employers protecting pregnancies, it will be easier for private employers to follow suit. 

Protecting working women and their pregnancies will help families too because most households in America depend, wholly or in part, on women’s income.

[1] See Roe v. Wade, 410 U.S. 113 (1973). 

[2] Planned Parenthood v. Casey, 505 U.S. 833 (1992). The decision in Casey prohibits states from enacting laws that place an undue burden on women seeking an abortion within the first trimester.

[3] See Roe, 410 U.S. 113. In Roe, the Supreme Court attempted to balance privacy rights against states’ rights and duties to protect the health of their citizens.

[4] Gonzales v. Carhart, 550 U.S. 124, 172 (2007) (Ginsburg, J., dissenting).

[5] Whole Woman's Health v. Hellerstedt, 579 U.S. ___ (2016).

[6] See, e.g., State v. Planned Parenthood of Alaska, 28 P.3d 904 (Alaska 2001); New Mexico Right to Choose/NARAL v. Johnson, 975 P.2d 841 (N.M. 1998); Doe v. Maher, 515 A.2d 134 (CT Super. Ct. 1986).

[7] See Jessica Silver-Greenberg & Natalie Kitroeff, Miscarrying at Work: The Physical Toll of Pregnancy Discrimination, NY Times (Oct. 22, 2018) (reporting on women who lost their pregnancies after denied requests for light duty accommodation

Just two months ago, people around the world celebrated International Women’s Day. Ninety-three years ago, the first official International Women’s Day was celebrated in Austria, Denmark, Germany and Switzerland, organized by the great German feminist Clara Zetkin, who wanted a single day to remember the 1857 strike of garment workers in the U.S. that led to the formation of the International Ladies Garment Workers Union. On March 19, 1911— the anniversary has changed since then—more than a million women and men rallied to demand the right to work, to hold public office and to vote.

Think of how much has changed in those 93 years! Throughout most, if not all of the industrial world, women have: gained the right to vote, to own property in their own name, to divorce, to work in every profession, to join the military, to control their own bodies, to challenge men’s presumed “right” to sexual access once married, or on a date, or in the workplace.

Indeed, the women’s movement is one of the great success stories of the twentieth century, perhaps of any century. It is the story of a monumental, revolutionary transformation of the lives of more than half the population. But what about the other half? Today, this movement for women’s equality remains stymied, stalled. Women continue to experience discrimination in the public sphere. They bump their heads on glass ceilings in the workplace, experience harassment and less-than fully welcoming environments in every institution the public sphere, still must fight to control their own bodies, and to end their victimization through rape, domestic violence, and trafficking in women.

I believe the reason the movement for women’s equality remains only a partial victory has to do with men. In every arena—in politics, the military, the workplace, professions and education—the single greatest obstacle to women’s equality is the behaviors and attitudes of men. I believe that changes among men represent the next phase of the movement for women’s equality—that changes among men are vital if women are to achieve full equality. Men must come to see that gender equality is in their interest—as men.

This great movement for gender equality has already begun to pay attention to the fact that men must be involved in the transformation.  The Platform for Action adopted at the Fourth World Congress on Women, in Beijing in 1995 said: “The advancement of women and the achievement of equality between women and men are a matter of human rights and a condition for social justice and should not be

seen in isolation as a women’s issue.” 

But why should men participate in the movement for gender equality? Simply put, I believe that these changes among men will actually benefit men, and that gender equality is not a loss for men,

 but an enormously positive thing that will enable us to live the kinds of lives we say we want to live. Indeed, gender mainstreaming is an idea whose time has come—for men.

In order to make this case, I will begin by pointing to several arenas in which women have changed so drastically in the past half-century, and suggest some of the issues I believe we men are currently facing as a result. First, women made gender visible. Women have demonstrated the centrality of gender in social life; in the past two decades, gender has joined race and class as the three primordial axes around which social life is organized, one of the primary building blocks of identity.

This is, today, so obvious that it hardly needs mentioning. Parliaments have Gender committees, and the Nordic countries even have Ministers for Gender Equality. Every university in the U.S. has a Women’s Studies Program. Yet we forget just how recent this all is. The first Women’s Studies program in the world was founded in 1972.

Second, women have transformed the workplace. Women are in the workplace to stay. Almost half the labor force is female. I often demonstrate this point to my university classes by asking the women who intend to have careers to raise their hands. All do. Then I ask them to keep their hands raised if their mothers have had a career outside the home for more than ten years without an interruption. Half put their hands down. Then I ask them to keep their hands raised if their grandmothers had a career for ten years. Virtually no hands remain raised. In three generations, they can visibly see the difference in women’s working lives.

Just 40 years ago, in 1960, only about 40% of European adult women of working age were in the labor force; only Austria and Sweden had a majority of working-age women in the labor force. By 1994, only Italy, Greece, Ireland, Luxembourg and Spain did not have a majority of working-age women in the labor force, and the European average had nearly doubled.

This has led to the third area of change in women’s lives: the efforts to balance work and family life. Once upon a time, not so long ago, women were forced to choose between career and family. But beginning in the 1970s, women became increasingly unwilling to choose one or the other. They wanted both. Could a woman “have it all?” was a pressing question in the past two decades. Could she have

a glamorous rewarding career and a great loving family?

The answer, of course, was “no.” Women couldn’t have it all because... men did. It is men who have the rewarding careers outside the home and the loving family to come home to. So if women are going to have it all, they are going to need men to share housework and childcare. Women have begun to question the “second shift,” the household shift that has traditionally been their task, after the workplace shift is over.

Finally, women have changed the sexual landscape. As the dust is settling from the sexual revolution, what emerges in unmistakably finer detail is that it’s been women, not men, who are our era’s real sexual pioneers. Women now feel empowered to claim sexual desire. Women can like sex, want sex, seek sex. Women feel entitled to pleasure. They have claimed their own sexual agency.  And men; what’s been happening with men while women’s lives have so completely transformed? Not very much. While some men have changed in some ways, most men have not undergone a comparable

revolution. This is, I think, the reason that so many men seem so confused about the meaning of masculinity these days.

In a sense, of course, our lives have changed dramatically. I think back to the world of my father’s generation. Now in his mid-70s, my father could go to an all-male college, serve in an all-male military and spend his entire working life in a virtually all-male working environment. That world has completely disappeared.

So, our lives have changed. But men have done very little to prepare for this completely different world. What has not changed are the ideas we have about what it means to be a man. The ideology of masculinity has remained relatively intact for the past three generations. That’s where men are these days: our lives have changed dramatically, but the notions we have about what it means to be a man remain locked in a pattern set decades ago, when the world looked very different.

What is that traditional ideology of masculinity? In the mid-1970s, an American psychologist offered what he called the four basic rules of masculinity:

1) “No Sissy Stuff.” Masculinity is based on the relentless repudiation of the feminine. Masculinity is never being a sissy.

2) “Be a Big Wheel.” We measure masculinity by the size of your paycheck. Wealth, power, status are all markers of masculinity. As a U.S. bumper sticker put it: “He who has the most toys when he dies, wins.”

3) “Be a Sturdy Oak.” What makes a man a man is that he is reliable in a crisis. And what makes him reliable in a crisis is that he resembles an inanimate object—a rock, a pillar, a tree.

4) “Give ‘em Hell.” Also exude an aura of daring and aggression. Take risks; live life on the edge. Go for it.

The past decade has found men bumping up against the limitations of that traditional definition, but without much of a sense of direction about where they might go to look for alternatives. We chafe against the edges of traditional masculinity, but seem unable or unwilling to break out of the constraints we feel by those four rules. Thus, the defensiveness, the anger, the confusion that is evident everywhere. These limits will become most visible around the four areas in which women have changed most dramatically: making gender visible, the workplace, the balance between work and home, and sexuality. They suggest the issues that must be placed on the agenda for men, and a blueprint for a transformed masculinity.

Let me use these rules of manhood alongside the arenas of change in women’s lives and suggest some of the issues I believe we are facing around the world today. First, though we now know that gender is a

central axis around which social life revolves, most men do not know they are gendered beings. When we say “gender,” we hear “women.” That gender remains invisible to men is a political process.

I often tell a story about a conversation I observed in a feminist- theory seminar that I participated in about a decade ago. A white woman was explaining how their common experience of oppression under patriarchy bound them together as sisters. All women, she explained, had the same experience as women, she said.

The black woman demurred from quick agreement. “When you wake up in the morning and look in the mirror,” she asked the white woman, “what do you see?”

“I see a woman,” responded the white woman hopefully.

“That’s the problem,” responded the black woman. “I see a black woman. To me, race is visible, because it is how I am not privileged in society. Because you are privileged by race, race is invisible to you. It is a luxury, a privilege not to have to think about race every second of your life.” I groaned, embarrassed. And, as the only man in the room, all eyes turned to me. “When I wake up and look in the mirror,” I confessed, “I see a human being—the generic person. As a middle-class white man, I have no class, no race and no gender. I am universally generalizable. I am everyman.”

Lately, I’ve come to think that it was on that day in 1980 that I became a middle-class white man, that these categories actually became operative to me. The privilege of privilege is that the terms of privilege

are rendered invisible. It is a luxury not to have to think about race, or class or gender. Only those marginalized by some category understand how powerful that category is when deployed against them.

While this story took place over 20 years ago, I was reminded of it recently when I went to give a guest lecture for a female colleague at my university. (We teach the same course on alternate semesters, so she always gives a guest lecture for me, and I do one for her.) As I walked in to the auditorium, one student looked up at me and said, “Oh, finally, an objective opinion!”

All that semester, whenever my female colleague opened her mouth, what this student saw was “a woman.” Biased. But when I walked in, I was, in this student’s eyes, unbiased, an objective opinion.  Disembodied Western rationality—standing right in front of the class! This notion that middle-class white men are “objective” and everyone else is “biased” is the way that inequalities are reproduced.

This is why I think it’s important that I wear a tie. For what garment could better illustrate disembodied Western rationality, the mind-body dualism, than a garment where one end is tied in a noose around

the neck and the other end points to the genitals?

Let me give you another example of how privilege is invisible to those who have it. Many of you have email addresses, and you write email messages to people all over the world. You’ve probably noticed that there is one big difference between email addresses in the United States and email addresses of people in other countries: your addresses have “country codes” at the end of the address. So, for example, if you were writing to someone in South Africa, you’d put “za” at the end, or “jp” for Japan, or “uk” for England (United Kingdom) or “de” for Germany (Deutschland). But when you write to people in the United States, the email address ends with “edu” for an educational institution, “org” for an organization, “gov” for a federal government office, or “com” or “net” for commercial internet providers. Why is it that the United States doesn’t have a country code?

It is because when you are the dominant power in the world, everyone else needs to be named. When you are “in power,” you needn’t draw attention to yourself as a specific entity, but, rather, you can pretend to be the generic, the universal, the generalizable. From the point of view of the United States, all other countries are “other” and thus need to be named, marked, noted. Once again, privilege is invisible. In the world of the Internet, as Michael Jackson sang, “We are the world.”

Becoming aware of ourselves as gendered, recognizing the power of gender as a shaping influence in our lives, is made more difficult by that first rule of manhood—No Sissy Stuff. The constant, relentless efforts by boys and men to prove that they are “real men” and not sissies or weak or gay is a dominant theme, especially in the lives of boys. As long as there is no adequate mechanism for men to experience a secure, confident and safe sense of themselves as men, we develop our own methods to “prove it.” One of the central themes I discovered in my book, Manhood in America was the way that American manhood became a relentless test, a constant, interminable demonstration.

The second arena in which women’s lives have changed is the workplace. Recall the second rule of manhood: Be a Big Wheel. Most men derive their identity as breadwinners, as family providers.  Often, though, though, the invisibility of masculinity makes it hard to see how gender equality will actually benefit us as men. For example, while we speak of the “feminization of poverty” we rarely “see” its other side—the “masculinization of wealth.” Typically, we express women’s wages as a function of men’s wages: in the E.U., women earn on average 83 cents for every dollar of men’s hourly wages. But what is concealed is what we might see if women’s wages were the norm against which men’s were measured. Men, on average, earn $1.20 for every dollar women earn. Now suddenly privilege is visible!

Women experience the glass ceiling—women are only 10% of all senior managers of U.S. Fortune 500 companies; only 3-5% of all senior managers in all U.S. companies. By contrast, men in “women’s” professions (say, librarian, nursery school teacher, nurse) ride a “glass escalator” to high-level managerial positions that will preserve their “masculinity.”

Usually we believe that our career trajectories are the results of our individual characteristics, not the characteristics of the organization. A recent doctoral dissertation in economics by Ulla Eriksson at the

University of Goteborg suggests otherwise. For two years, she followed five female and five male trainees in a large Swedish multinational corporation with 6,000 employees. All came from similar

backgrounds, had similar education and had similar goals and ambitions. All ten aspired to top management positions. After their training, they all still were similar. At the end of the time, all the

men and none of the women had entered the top management group.

Why? Eriksson posited that it is the business culture—a culture that values “face time” over actual performance, penalizing women who work from home with sick children; a culture that makes balancing work and family nearly impossible for women, and the criteria for success itself.

Now, remember, during the current economic downturn, fewer and fewer men are feeling much like big wheels. And here come women into the workplace in unprecedented numbers. Recently I appeared on a television talk show opposite three “angry white males” who felt they had been the victims of workplace discrimination. The show’s title, no doubt to entice a large potential audience, was “A Black Woman Took My Job.” In my comments to these men, I invited them to consider what the word “my” meant in that title, that they felt that the jobs were originally “theirs,” that they were entitled to them, and that when some “other” person—black, female—got the job, that person was really taking “their” job. But by what right is that his job? Only by his sense of entitlement, which he now perceives as threatened by the movement toward workplace gender equality.

These anecdotes illustrate what to me are the central issues involved in integrating gender into our workplaces. Typically, we think we can create gender equality through “gender neutral” policies -policies that do not consider gender in hiring, salary or promotion. But such gender neutral policies fail to take into account the ways in which the very criteria by which people are evaluated are also gendered; the ways that the assumptions about what constitutes effective performance, leadership, or initiative are gendered. Stated most simply, gender neutral policies aren’t gender neutral. They are in fact deeply gendered.

We need gender equal policies, not gender neutral policies. We are seen as gendered beings, and the processes by which we are evaluated are gendered. When Lise Meitner, the famed German physicist, gave her first lecture at the University of Berlin in 1922 on “The Significance of Radioactivity for Cosmic Processes,” the newspapers reported her topic as problems of “Cosmetic processes.” And there’s an old adage in organizational studies that a man is unsexed by failure, but a woman is unsexed by success. Ambition, competence, competitiveness—these are still coded as masculine. Don’t believe me? How many of the women in this room were ever told “don’t be so smart, or you won’t get married.” Now, how many men were told anything even remotely like that?

Gender equality in the workplace also requires that we address work- family balances and reorganize the workplace to accommodate both work and family life. But remember the third rule of manhood—“Be a Sturdy Oak.” What has traditionally made men reliable in a crisis is also what makes us unavailable emotionally to others. We are increasingly finding that the very things that we thought would make us real men impoverish our relationships with other men and with our children.

Fatherhood, friendship, partnership all require emotional resources that have been, traditionally, in short supply among men, resources such as patience, compassion, tenderness, attention to process. A “man isn’t someone you’d want around in a crisis,” wrote the actor Alan Alda, “like raising children or growing old together.”

In the United States, men become more active fathers by “helping out” or by “pitching in” or spending “quality time” with their children. Women in the U.S. and the E.U. still do about 80% of all housework and child care.

But it is not “quality time” that will provide the deep intimate relationships that we say we want, either with our partners or with our children. It’s quantity time—putting in those long, hard hours of thankless, unnoticed drudge work. It’s quantity time that creates the foundation of intimacy. Nurture is doing the unheralded tasks, like holding someone when they are sick, doing the laundry, the ironing, washing the dishes. After all, men are capable of being surgeons and chefs, so we must be able to learn how to sew and to cook.

We need dual career and dual career families. That men share housework and child care is crucial for gender equality. In organization after organization, we see the dilemmas of women trying to have it all. At Deloitte and Touche, a major consulting firm, the only women who got to be partners were the ones without families. Either they didn’t have kids, or their kids were grown, or they were divorced. In my own academic department, one renowned for its gender “equal”— i.e., neutral—policies, only one of the 10 tenured women faculty members has children—and she waited until they were grown before she returned to graduate school. All of the tenured men have children.

Well, now that I’ve told you about my department, let me ask you about yours: how many of the women in this room took some amount of parental leave, paid or, when their children were born? How many of the men did?

Workplace and family life are also joined in the public sphere. Several different kinds of policy reforms have been proposed to make the workplace more “family friendly”—to make the workplace more hospitable to our efforts to balance work and family. These reforms generally revolve around three issues: on-site childcare, flexible working hours, and parental leave. But how do we usually think of these family-friendly workplace reforms? We think of them as women’s issues. But these are not women’s issues, they’re parents’ issues, and to the extent that we, men, identify ourselves as parents, they are reforms that we will want. Because they will enable us to live the lives we say we want to live. We want to have our children with us; we want to be able to arrange our work days to balance work and family with our wives, we want to be there when our children are born.

On this score, Americans have so much to learn from Europeans, especially from the Nordic countries, which have been so visionary in their efforts to involve men in family life. In Sweden, for example, men are actively encouraged by state policies to take parental leave to be part of their children’s first months. Before the institution of “Daddy Days,” less than 20% of Swedish men took any parental leave at all. Today, though, the percentage of men who do has climbed to over 90%. That’s a government that has “family values.”

“Use or lose” parental leave policies, reduced working hours, career breaks—these are the reforms that parents need to balance work and family. For women to balance work and family has meant that they assert their workplace ambitions at home, that they make bargains with families, partners, husbands in order to pursue their careers, that they postpone or even forgo children in order to do that. Currently, best-sellers remind women of these painful choices and counsel them be “intentional” about children to snag a man and have their kids early and let the career chips fall where they may.

What women have become is “private careerists,” coming out of the closet as workers at home, and have begun to insist that their career ambitions be part of the negotiations about family time and place. To balance women being “private careerists,” men need, I believe, to proclaim a “public fatherhood.” Men need to assert in the workplace their desires to spend time with their families, to balance work and family life.

What does “public fatherhood” mean concretely? Several years ago, I did a study for the Harvard Business Review on men and parental leave. I found that in the 1% of U.S. corporations that offered unpaid parental leave, only 1% of male employees took it. You see, they said, there’s no demand.

When I interviewed men in these corporations, however, I heard a different story. When they told their supervisor, their manager or even their male colleagues that they were going to take parental leave, the other men responded “Well, I guess you’re not really committed to your career,” “We’ll put you on the daddy track,” or “You’ll never make partner in this law firm.”

You see, when women take parental leave, they’re seen as responding to a higher calling; when men take parental leave, they’re seen as henpecked and not committed to their careers. They must behave as if they had no other life, no family. In one recent study, a group of people, asked to be personnel managers, were given fabricated dossiers of potential job applicants. Then each “manager” gave his or her impression of the candidates and especially whether the applicant would make a good employee. Women who reported that they took family leave were generally seen positively. But the men who took leave for the birth of a child or to care for a sick parent were seen negatively, and rated as not seriously committed to their jobs.

So what did the men do? They disguised parental leave as something else—unused vacation time, comp time, sick leave. They went to their senior partner or manager and said, “My wife is going to have a baby next month. I am going to take my three weeks vacation then, and while on vacation I will get sick, so I will then have to take my three weeks of sick leave.” Their colleagues and supervisors winked and said “no problem, good luck.” In essence, these men took what I have no come to call “informal parental leave” because they were so eager to do so, but they also had to preserve their masculinity by appearing to be more concerned about their career.

We need these men to demand parental leave, we need policies that encourage and support it, and we need to change the culture of our organizations to support men taking parental leave—because ONLY when men share housework and child care can we have the kinds of lives we say we want to have, and ONLY when men share house work and childcare will women be able to balance work and family, be able to have it all. This, it seems to me, is the promise of gender mainstreaming.

Were our venue slightly different, I would take up the last arena of change for women, sexuality, but I think for today, I’m going to make one quick remark and conclude. It’s about rape and sexual assault. Nearly 20 years ago, anthropologist Peggy Reeves Sanday proposed a continuum of propensity to commit rape upon which all societies could be plotted—from rape-prone to rape free. (For the curious, by the way, the United States was ranked as a highly rape prone society, far more than any country in Europe; Norway and Sweden were among the most rape free.) Sanday found that the single best predictors of rape-proneness were (1) whether the woman continued to own property in her own name after marriage, a measure of women’s autonomy; and (2) father’s involvement in child-rearing, a measure of how valued parenting is, and how valued women’s work is.

Clearly here is an arena in which women’s economic autonomy is a good predictor of their safety—as is men’s participation in child-rearing. Those societies in which women are able to have their “private careers” and in which men express “public fatherhood” are the safest for women. If men act at home the way we say we want to act, women will be safer.

Let me conclude then. Rather than resisting the transformation of our lives that gender equality offers, I believe that we should embrace these changes, both because they offer us the possibilities of social and economic equality, and because they also offer us the possibilities of richer, fuller and happier lives with our friends, with our lovers, with our partners and with our children. We, as men, should support gender equality—both at work and at home. Not because it’s right and fair and just—although it is those things. But because of what it will do for us, as men. At work, it means working to end sexual harassment, supporting family-friendly workplace policies, working to end the scourge of date and acquaintance rape, violence and abuse that terrorize women in our societies. At home it means sharing housework and childcare, as much because our partners demand it as because we want to spend that time with our children and because housework is a rather conventional way of nurturing and loving.

If the goal is gender equality, the means is feminism. Feminism remains one of the world’s most powerful ideologies because it requires that we examine not just ourselves but our interactions and the

institutions in which we find ourselves, and that we understand these interactions and institutions as organized in a field of power. Feminism is about that critique, and it is about transformation.

The feminist transformation of society is a revolution-in-progress. For nearly two centuries, we men have met insecurity by frantically shoring up our privilege or by running away. These strategies have never brought us the security and the peace we have sought. Perhaps now, as men, we can stand with women and embrace the rest of this revolution—embrace it because of our sense of justice and fairness, embrace it for our children, our wives, our partners and ourselves. Today, we men are also coming to realize that gender equality is in our interests as men; that we will benefit from gender equality. That gender equality holds out a promise of better relationships with our wives, with our children and with other men. Nearly a century ago, an American writer wrote an essay called “Feminism for Men.” Its first line was this: “Feminism will make it possible for the first time for men to be free.”

RESOLVED, That the American Bar Association supports constitutional equality for women, and urges the extension of legal rights, privileges and responsibilities to all persons, regardless of sex. 

FURTHER RESOLVED, That the American Bar Association reaffirm its support of and affirmatively act toward the goal of the ratification of the Equal Rights Amendment to the U.S. Constitution.

FURTHER RESOLVED, That the American Bar Association calls on all bar associations to support and take up the pursuit of ratification of the Equal Rights Amendment to the United States Constitution. 

REPORT

The proposed Equal Rights Amendment states,

    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.

    Section 3. This amendment shall take effect two years after the date of ratification. 

Article V of the Constitution prescribes how an amendment can become a part of the U.S. Constitution. While there are two ways, only one has ever been used. All 27 successful amendments have been ratified after two-thirds of the House and Senate approved of the proposal and send it to the states for a vote. Then, three-fourths of the states (38 out of 50) were required to affirm the proposed amendment.[1]

ERA Background

The ERA was originally presented in 1923 by Alice Paul, a leader in the women’s suffrage movement who held three law degrees. The current text is modeled after the 19th Amendment, which Paul submitted it in 1943. 

While many aspects of the law have evolved to offer rights and protections to many in our society, basic legal protection against sex discrimination has not yet been realized and affirmed in the Constitution, even given the considerations of the 14th Amendment. The ERA would make clear that discrimination based on sex is not allowed in the courts. Its adoption would further send a strong message to lawmakers that the highest law of the land does not tolerate disparate treatment of men and women. 

Adoption of this resolution would mobilize the nation’s largest lawyers organization, and hopefully activate the local, county and state bar associations around the country, to pressure public officials to make this necessary change that champions the defense of liberty and the pursuit of justice that informs the democratic question for a “more perfect union.” Through a chorus of voices in the legal profession the mission of advancing equality under the law can be fulfilled. 

The ERA has a long, storied history in United States political discourse. A nearly successful effort to enact the amendment occurred in the 1970’s when the amendment reached a zenith of having the necessary congressional approval in both houses and the affirmation of 35 out of 38 states. It ultimately failed to receive any further support. Later, five states de-affirmed their prior approvals between 1973-79. 

The current version of the ERA gained passage by the required two-thirds majority on March 22, 1972. 

President Richard Nixon endorsed the ERA's approval upon its passage by the 92nd Congress.[2] The congressional approvals, including an extension resolution, contained an expiration clause, requiring that the ERA ultimately be adopted on or before June 30, 1982.[3]

As of that original deadline, the ERA had been ratified by the following states:

Hawaii (March   22, 1972)

New Hampshire   (March 23, 1972)

Delaware (March   23, 1972)

Iowa (March 24,   1972)

Idaho (March 24,   1972)

Kansas (March   28, 1972)

Nebraska (March   29, 1972)

Texas (March 30,   1972)

Tennessee (April   4, 1972)

Alaska (April 5,   1972)

Rhode Island   (April 14, 1972)

New Jersey   (April 17, 1972)

Colorado (April   21, 1972)

West Virginia   (April 22, 1972)

Wisconsin (April   26, 1972)

New York (May   18, 1972)

Michigan (May   22, 1972)

Maryland (May   26, 1972)

Massachusetts   (June 21, 1972)

Kentucky (June   26, 1972)

Pennsylvania   (Sept. 27, 1972)

California (Nov.   13, 1972)

Wyoming (Jan.   26, 1973)

South Dakota   (Feb. 5, 1973)

Oregon (Feb. 8,   1973)

Minnesota (Feb.   8, 1973)

New Mexico (Feb.   28, 1973)

Vermont (March   1, 1973)

Connecticut   (March 15, 1973)

Washington   (March 22, 1973)

Maine (Jan. 18,   1974)

Montana (Jan.   25, 1974)

Ohio (Feb. 7,   1974)

North Dakota   (March 19, 1975)

Indiana (Jan.   24, 1977)

Affirmations were later rescinded by five of those states as follows:

• · Nebraska (March 15, 1973 – Legislative Resolution No. 9)
• · Tennessee (April 23, 1974 – House Joint Resolution No. 371 and Senate Joint Resolution No. 29)
• · Idaho (Feb. 8, 1977 – Senate Joint Resolution No. 133 and House Concurrent Resolution No. 10)
• · Kentucky (March 17, 1978 – House (Joint) Resolution No. 2 and House (Joint) Resolution No. 20)
• · South Dakota (March 1, 1979 – Senate Joint Resolution No. 1 and Senate Joint Resolution No. 2) South Dakota's own ratification of the ERA would only be valid up until March 22, 1979, and any ratification activities transpiring after that date anywhere else would be considered by South Dakota to be null and void.

(It is important to note that the U.S. Constitution is silent regarding a state's authority to rescind its ratification of a proposed, but not yet adopted, constitutional amendment.)

On Dec. 23, 1981, in Idaho v. Freeman, 529 F. Supp. 1107 (1981), the United States District Court for the District of Idaho ruled that the rescissions—all of which occurred before the original 1979 ratification deadline—were valid and that the ERA's deadline extension was unconstitutional. The National Organization for Women appealed the ruling. However, the acting solicitor general reported to the Court that the administrator of general services concluded the ERA had not received the required number of ratifications, so "the Amendment has failed of adoption no matter what the resolution of the legal issues presented here." He urged the Court to dismiss the complaint. On Oct. 4, 1982, in NOW v. Idaho, 459 U.S. 809 (1982), the U.S. Supreme Court vacated the ruling in Idaho v. Freeman and declared the entire matter moot on the grounds that the ERA was dead for the reason given by the administrator of general services.

There remains considerable academic and political disagreement on whether the ERA can be revised and ratified by achieving ratifications of an additional three states’ under the 35- of 38-state tally noted above; to wit, a “three-state strategy.” 4 That strategy is discussed in a 1997 article called “The Equal Rights Amendment: Why the Era Remains Legally Viable and Properly Before the States” in the William & Mary Journal of Women and the Law. In 2013, a report of the Library of Congress's Congressional Research Service (Thomas H. Neale, The Proposed Equal Rights Amendment: Contemporary Ratification Issues, Congressional Res. Serv., (May 9, 2013)) examined the legislative history and provided an analysis of the factors affecting its viability.

Proponents of the three-state strategy have promoted ratification resolutions in the legislatures of most of the 15 states that never ratified the ERA approved by Congress in 1972, but no approval has been forthcoming. 

Going Forward to Success - ERA 2020 

While the ERA has been introduced in every session of Congress since 1982, it has not achieved a critical mass to propel it to success. 

Its time has come and, as thought leaders on legal issues, lawyers can be the agents of that change. This association has long studied and supported the fundamental underpinnings of the ERA. It supported ratification of the proposed 27th Amendment to the Constitution initially in Feb. 1972 and again in Aug. 1974. 

This resolution would directly advance those previously stated goals. Additionally, it speaks to the ABA’s general policies, such as Goal III for the Association, which states: “Promote full and equal participation in the association, our profession, and the justice system by all persons.” This is the opportunity to finish the job of delivering on the basic and fundamental right of equality based on sex under the law.

Respectfully submitted,

Miles S. Winder III, President

New Jersey State Bar Association

February 2016

GENERAL INFORMATION FORM

Submitting Entity: New Jersey State Bar Association 

Submitted By: Miles S. Winder, III, President 

1. Summary of Resolution(s). This resolution seeks the affirmation of the American Bar Association’s support of the ratification of the Equal Rights Amendment to the U.S. Constitution. Further, it asks other legal entities to consider same, and, if approved, act to that effect. 

2. Approval by Submitting Entity. The New Jersey State Bar Association authorized this action at its Oct. 16, 2015 Board of Trustees meeting. 

3. Has this or a similar resolution been submitted to the House or Board previously? Yes, many years ago, see answer #4.

4. What existing Association policies are relevant to this Resolution and how would they be affected by its adoption? The ABA supported ratification of the proposed 27th Amendment to the Constitution initially in Feb. 1972 and again in Aug. 1974. This resolution would directly advance those previously stated goals. Additionally, support of this effort speaks to Goal III of the association, to provide equal opportunities for women and minorities.

5. If this is a late report, what urgency exists which requires action at this meeting of the House? N/A

6. Status of Legislation. (If applicable) The Equal Rights Amendment was originally presented in 1923. It was nearly approved in the 1970s, garnering support in 35 (of the necessary 38) states. Some states de-affirmed their prior approval. It has since been reintroduced in every session of Congress, most recently in the 117th Congress, in which two types of ERA legislation has been introduced. One seeks the traditional ratification process and a second proposes the “three-state strategy.” Both are pending. 

7. Brief explanation regarding plans for implementation of the policy, if adopted by the House of Delegates. The NJSBA will work with the ABA to use all available, existing resources, including but not limited to social media, communications, and government affairs. 

8. Cost to the Association. (Both direct and indirect costs) Direct costs are not anticipated, but additional time and energy of the existing government affairs program may be sought, if adopted. 

9. Disclosure of Interest. (If applicable) N/A 

10. Referrals. Referred to the Commission on Women, NCBP, NABE and the Diversity Center.

11. Contact Name and Address Information. (Prior to the meeting. Please include name, address, telephone number and e-mail address) Kate Coscarelli, senior managing director of communications and media relations, New Jersey State Bar Association, One Constitution Square, New Brunswick NJ 08901, 732-937-7548 or kcoscarelli@njsba.com

12. Contact Name and Address Information. (Who will present the report to the House? Please include name, address, telephone number, cell phone number and e-mail address.) Thomas H. Prol, President-Elect NJSBA, 60 Blue Heron Road, Sparta NJ 07871, 973-862-9817 or tprol@lcrlaw.com; Wayne J. Positan, New Jersey Delegate, 103 Eisenhower Parkway, Roseland NJ 07068, or wpositan@lumlaw.com. 

EXECUTIVE SUMMARY

1. Summary of the Resolution 

This resolution seeks the affirmation of the American Bar Association’s support of the ratification of the Equal Rights Amendment to the U.S. Constitution. Further, it asks other legal entities to consider same, and, if approved, act to that effect.

2. Summary of the Issue that the Resolution Addresses

Ratification of the ERA was originally presented by Alice Paul in 1923. It was nearly successfully enacted in the 1970s, but fell short. While many aspects of the law have evolved to offer rights and protections to many in our society, basic legal protection against sex discrimination has not yet been realized and affirmed in the Constitution, even given the considerations of the 14th Amendment. The ERA would make clear the legal status of sex discrimination in the courts and would send a clear message to lawmakers that the highest law of the land does not tolerate men and women being treated as separate classes. 

3. Please Explain How the Proposed Policy Position will address the issue 

Adoption of this resolution would mobilize the nation’s largest lawyers organization, and hopefully activate the local, county and state bar associations around the country, to pressure public officials to make this necessary change that champions the defense of liberty and the pursuit of justice that informs the democratic question for a “more perfect union.” Through a chorus of voices in the legal profession the mission of advancing equality under the law can be fulfilled. 

4. Summary of Minority Views

Some believe it is not necessary given other laws on discrimination and court decisions.
   

[1] In addition, a Constitutional Convention called by two-thirds of the legislatures of the several states can propose as many amendments as it deems necessary; those amendments must be approved by three-fourths of the states to be adopted, U.S. Const. Art. V. 

[2] This supplemented President John F. Kennedy’s endorsement of the provision in an October 21, 1960, letter to the chairman of the National Woman's Party

[3] The original 1979 deadline was extended under the 95th Congress by House Joint Resolution No. 638 (H. J. Res. 638, 95th Cong., 1st Sess. (1977)), introduced by NY Representative Elizabeth Holtzman. Beginning in 1917, Congress has usually (but not always) imposed deadlines on proposed amendments. While the Constitution does not expressly provide for a deadline on the state legislatures' or state ratifying conventions' consideration of proposed amendments. In Dillon v. Gloss, 256 U.S. 368 (1921), the Supreme Court affirmed that Congress can provide a deadline for ratification. But Cf. Coleman v. Miller, 307 U.S. 433 (1935), in which the Court modified Dillon considerably, holding that the question of timeliness of ratification is a political and non-justiciable one, leaving the issue to Congress's discretion. It would appear that the length of time elapsing between proposal and ratification is irrelevant to the validity of the amendment. For example, the 27th Amendment was proposed in 1789 and ratified more than 200 years later in 1992. On May 20, 1992, both houses of Congress adopted concurrent resolutions accepting the 27th Amendment's unorthodox ratification process as having been successful and valid.

4 Allison L. Meld, Sheryl L. Herndon and Danielle M. Stager, The Equal Rights Amendment: Why the Era Remains Legally Viable and Properly Before the States, 3 Wm. & Mary J. Women & Law. 113 (1997).