Illinois legislators just recently approved the Equal Rights Amendment; with the passage of the amendment by one more state, the ERA may soon become the 28th Amendment to the U.S. Constitution.
The amendment prohibits discrimination on the basis of sex. However, if it is ratified, I am concerned whether it will address sex-based discrimination. Congress already prohibits sex-based discrimination with Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the account of sex; Title IX of the Educational Amendments of 1972, which prohibits discrimination based on sex in education programs that receive federal financial assistance, and the Lilly Ledbetter Fair Pay Act of 2009, which prohibits sex-based discrimination in pay.
Regarding the courts and the ERA, they will have to deal with what happens to sex-based discrimination case law already developed under the Fifth and 14th amendments. Will all of this case law become null and void? Will it be given second life under the ERA?
Second, it may take a while for courts to develop standards and tests that will be applied to ERA cases to constitute what is sex-based discrimination.
Finally, will the word “sex” expand to include transgender and gender nonbinary individuals? Our society has evolved; the Equal Rights Amendment was passed by Congress in 1972 for ratification by the states, and the term “sex” may have had a different meaning 46 years ago than it currently does in 2018.
I fully support the policy behind the ERA. But when looking at it through a legal lens, I have concerns if it will be just as effective at addressing sex-based discrimination as the Fifth and 14th amendments.