Florida May be the Key to Putting Women’s Rights in the U.S. Constitution

Senator Audrey Gibson missed the play-off games between the Chargers and the Patriots, but it was still significant to her; not because any of the players on the field but because of one, lone ref. That night, Sarah Thomas became the first female to ref an NFL play-off. Gibson wonders why women weren’t considered for the position before. And it not just in the NFL. Women throughout the country are denied opportunities that men are granted and paid less than their male counterparts. Gibson believes there’s solution; a constitutional amendment demanding gender equality.

In 1972, the U.S. Senate passed the Equal Rights Amendment (ERA) which stated, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The amendment had to be ratified by at least 38 states by 1982 in order to be added to the U.S. Constitution. Only 35 states ratified by the deadline and the amendment was believed to be dead. However, the amendment resurfaced when Nevada and Illinois chose to ratify the amendment in the backdrop of the #MeToo movement. ERA supporters doubt that the 1982 deadline held strong legal merit and thus believe that ERA still has a chance, but they need a 38th state to move forward. Gibson wants Florida to be that state and filed a bill early this month proposing such.

However, ERA supporters aren’t looking to Florida quite yet. They are now looking to Virginia whose legislative session has already begun to be the final piece of the ERA puzzle. Despite the fact that attempts to ratify there have failed time and time again, ERA is gaining support there. By the time, ERA even reaches the floor of the Florida senate, Virginia may have already ratified ERA, meaning that the amendment would already have the 38 states needed to move forward. Still, Senator Gibson told me that the state of Florida does and should a vested insert in ERA. “Florida is the #3 state population-wise which means there’s generally in the population, the larger population, women have a majority and there are more opportunities for denial,” she explained. “And I think Florida should send a message regardless of the number needed. We should be in the number anyway.”

However, ERA does have its critics.  Firstly, while Gibson insisted that ERA was crystal clear, others say the bill is too vague and its application would ultimately be left to the whims of the Supreme Court. The reasons why women are paid less than men and barred from jobs that men aren’t are complicated. The major reason for pay inequality, for example, is motherhood. Claire Cain Miller writes in an editorial for the New York Times, “When men and women finish school and start working, they’re paid pretty much equally. But a gender pay gap soon appears, and it grows significantly over the next two decades.” Miller goes on to argue that’s it’s in these decades that women work less flexibly to raise children and it’s for this reason that they are paid less. Does this qualify as an “abridgement or denial” of rights under ERA? It may be ridiculous for the amendment to answer such nuanced questions for itself. However, critics worry that the amendment’s brevity would leave too much up for interpretation so that when the nuanced questions come up, the answers are blank lines. Ultimately, it would be up to the Supreme Court to fill those lines and their decisions could have long-lasting effects for better or worse.

Furthermore, critics argue that ERA wouldn’t change anything in the constitution. The 14th amendment already states that no state can “deprive any person of life, liberty, or property, without due process of law” and ERA critics believe that this would include women. In other words, “on account of sex” is unnecessary in their view because the 14th amendment grants American rights just for being “people”. However, Senator Gibson argues that the 14th amendment hasn’t accomplished equality.  “Were all persons granted the same rights by the 14th amendment?” she asked me rhetorically. “Did it actually translate that way in real life?”

Recent research would say, “No.” The Institute for Women’s Policy Research estimates that women make 49 cents to every man’s dollar as opposed to the widely used estimate of 80 cents to every dollar. McKinsey & Company argue in their 2018 study that corporate America has made no meaningful progress on gender diversity. Gibson believe that ERA would directly these problems and stop them from them continuing. “It establishes constitutionally, it gives teeth to the fact that there should be relief for women who are paid less than men for the same job,” she said.

It is yet to be seen if her colleagues will agree with her when the legislative session begins in March.

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