Fall Updates from the ERA Project
The ERA Project has been hard at work in the last couple of months, advancing the struggle for gender justice with Dahlia Lithwick, Gloria Steinem, youth ERA activists at Generation Ratify, at the Pennsylvania Supreme Court, and in the pages of the Harvard Advanced Leadership Initiative’s Social Impact Review.
Before we share our highlights, it is important to note the win for Democracy in these midterm results. Voters turned out in support of constitutional values, equality, and reproductive rights. Nevada passed a state ERA which broadly protects equal rights, “regardless of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry, or national origin,” and New York is on its way to adding an expansively worded state ERA to its constitution that would explicitly protect abortion and abortion access. Vermont, Michigan, and California amended their state Constitutions to protect reproductive rights, while voters in Kansas and Kentucky rejected amendments to their state constitutions to ban abortions.
These victories are further evidence that our strategy to build out a modern equality movement at the state level is an important way to advance gender justice as we continue to advocate for the federal ERA.
Stay tuned for our forthcoming policy brief examining the ways in which existing sex discrimination protections have had the largest positive benefit on the most privileged women — white women. The policy brief, co-authored with the Center for Gender and Sexuality Law’s Racial Justice Project, examines the 20th century sex equality paradigm, and shows how it has failed to deliver meaningful advances for the equal rights of women of color. Despite the passage of sweeping federal, state, and local laws in the last 60 years that prohibit discrimination on the basis of sex in employment, education, public benefits, housing, health care, voting, and in virtually all significant aspects of the U.S. economy and society, women—and particularly women of color—continue to experience persistent sex discrimination. The policy brief makes the case that passage of the federal ERA could—and should—interject a 21st century, intersectional approach to equality under the U.S. Constitution.
The ERA: A New Foundation for Equality in the United States
Ting Ting Cheng, Harvard Advanced Leadership Initiative
November 8, 2022
“A constitutional ERA would strengthen our participatory and pluralistic democracy. It would benefit all, no matter the ideology — protecting those who wish to be free of government intrusion into the most intimate decisions in one’s life and providing a mechanism for transformational social change to improve the lives of the most marginalized and ensure equality. The conversation is far from over — in some ways it is beginning anew.”
The Center for Gender and Sexuality Law’s ERA Project partnered with Milbank LLP to host a thought-provoking conversation on the Equal Rights Amendment, the potential and promise it carries, along with the challenges ahead and the role each of us plays in making the vision of inclusive and equitable gender justice a reality.
Ting Ting Cheng, Director of the Equal Rights Amendment (ERA) Project at Columbia Law School masterfully facilitated the discussion between Dahlia Lithwick, Senior Editor at Slate and author of Lady Justice: Women, the Law, and the Battle to Save America, and Professor Katherine Franke, Director of the Center for Gender and Sexuality Law at Columbia Law School.
The Columbia Undergraduate Law Review (CULR) is Columbia University's premier undergraduate legal publication. The goal of CULR is to provide Columbia University and the public with opportunities for the discussion of law-related ideas and the publication of undergraduate legal scholarship.
Every year, CULR hosts a High School Essay competition and this year they partnered with the ERA Project to solicit essays on the Equal Rights Amendment. High school students from all over the world submitted their essays. To celebrate the students’ incredible work and Qirui Jiang's winning essay, titled “Building A Gender-Competent International Legal Framework on Sexual Violence,” CULR and the ERA Project hosted a virtual event which featured the essay authors and facilitated a conversation between them and ERA Project Director, Ting Ting Cheng.
You can also read coverage of this event by Columbia student news here, and read Qirui Jiang's winning essay here.
Women still do not have equal rights to men in the United States, leaving them vulnerable to changing political winds. What needs to be done to finally achieve this critical goal? Moment editor-in-chief Nadine Epstein is hosting a series of informal “dinner party” conversations, exploring long-term strategies that could lead to true gender equity. The focus is not on politics but on big picture legal, organizational and cultural change. In this inaugural conversation, Epstein talks with civil rights attorney Ting Ting Cheng, Director of the Equal Rights Amendment Project at Columbia Law School.
“The Road to Gender Equity” series is in memory of the late Justice Ruth Bader Ginsburg, whose legal strategies, based on the 14th Amendment, helped strengthen the rights of American women.
ERA Project and Generation Ratify met in September to discuss collaboration on ERA youth engagement in New York.
Ting Ting Cheng meets with Gloria Steinem and other powerful women to discuss the future of the feminist movement for equality.
ERA Project Director, Ting Ting Cheng, and Advisory Board Member, Liz Young, speak to the Young Feminist Society at the Notre Dame School in New York on November 8th.
In October, the Women Law Students Organization at Washington and Lee University School of Law hosted the 9th Annual Lara D. Gass Symposium on Women in the Law. The ERA Project’s Director, Ting Ting Cheng, participated in a panel about the Equal Rights Amendment, joined by Eileen Filler-Corn (VA House of Delegates), Linda Coberly (Winston & Strawn LLP), and Kate Kelly (Lawyer, Activist, Ordinary Equality Podcast.)
In this episode of the podcast Hello Uterus, Ting Ting Cheng, Director of The ERA Project at Columbia Law School, joins Carol Johnson and Angel Barrera for a sobering conversation about the history of the obstruction of the ERA, the hope for enshrining the ERA in the Constitution, and the work being done at the state level to protect rights for all.
Although some originalists might argue the ERA concerned discrimination between [cisgender and heterosexual] women and men when proposed, the ERA Project at Columbia Law School writes, “Historically, gender equality has been advanced and defined by the contributions of Black, queer, trans, and gender nonconforming individuals, not only by cisgender white women. What is more, Black and queer women spearheaded the ERA’s most critical period of revitalization.”
“There is a national narrative that people get abortions for frivolous reasons, that they take the issue very lightly, which I think is almost never the case," [Professor Katherine Franke] said.
Ting Ting Cheng, director of Columbia University’s ERA Project, said it’s hard to imagine [Colleen] Shogan [President Biden’s nominee for U.S. Archivist] being a “total renegade” and telling the Senate panel she plans to publish the ERA regardless of the Justice Department memo. Biden still has the authority to demand publication, she said.
Advocates are now reluctant to have the Supreme Court decide the fate of the ERA given the court’s recent Dobbs v. Jackson Women’s Health Organization ruling that overturned Roe v. Wade, says Ting Ting Cheng, director of the ERA Project at Columbia Law School Center for Gender and Sexuality Law.
The focus has shifted to the state courts, in part, because the Supreme Court ruling on Dobbs indicated it’s up to states to make these decisions, Cheng says. Now several states are working to amend their state constitutions to include an ERA while in other states, plaintiffs have cited the state’s ERA in lawsuits opposing abortion bans and restrictions, Cheng says.
This is the next battleground in the anti-abortion movement: the recognition of fetal personhood. If fetuses are granted personhood status, then they are entitled to constitutional rights. The court’s recognition of fetal personhood rights would prevent even abortion-friendly states from protecting reproductive rights.
“It is not surprising that anti-abortion advocates would argue that the Dobbs decision be stretched to recognize the idea of ‘fetal personhood,’” said Katherine Franke, professor of law and director of the Center for Gender & Sexuality Law at Columbia University. “Overruling Roe v. Wade was never the end game for many of these advocates, so it was just a matter of time before a case making this argument made its way to the Supreme Court.”
The ERA can enact change both through litigation and legislation. Specifically, the legislative channel is promised by Section 2 of the ERA, since it allows Congress to enforce Section 1’s prohibition on sex-based discrimination. Reflecting further on how publishing the ERA can impact maternal health, Ting Ting Cheng, the Director of the ERA Project at Columbia Law School, says, “A lot of those deaths were preventable and the result of institutional behavior, neglect, oversight, and ignoring the pain of pregnant people. Congress has a duty to change this.”