Everything You Need to Know About the Equal Rights Amendment

The Equal Rights Amendment, an amendment to the Constitution, protects people from discrimination on the basis of sex. Kate Kelly, Senior Director of the Women’s Initiative at the Center for American Progress, sits down to talk with us all about the Equal Rights Amendment—its history, its importance for abortion access preservation, and what’s necessary for certification.  

The ERA, passed in 1923, is not a law but a constitutional amendment. Once put in, it cannot be removed. The ERA’s introduction and popularity became a target for the conservative right, and its ratification has faced barriers ever since, including during the Trump administration. The current Federal Register archivist has said in her confirmation hearings that she will not certify anything she isn’t instructed to, which leaves the U.S. at its current standing. Many organizations and Congresspeople, though, are pushing for the ERA’s introduction into the Constitution as the 28th amendment.

Links from this episode

Center for American Progress’ Women’s Initiative
Center for American Progress’ Women’s Initiative on X
Center for American Progress on X
What Comes Next for the Equal Rights Amendment?
Op-Ed: The best way to protect abortion rights? Finalize the Equal Rights Amendment
Ordinary Equality: The Fearless Women and Queer People Who Shaped the U.S. Constitution and the Equal Rights Amendment
Ordinary Equality Podcast

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Transcript

Jennie: Welcome to rePROs Fight Back, a podcast on all things related to sexual and reproductive health, rights, and justice. [music intro]

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Jennie: Hey rePROs. How's everybody doing? I'm your host Jennie Wetter, and my pronouns are she/her. So let's kick off the episode with this just like a quick bit of housekeeping. I feel like it's been a while since I've talked about the special promotion we have going on for people who donate to the podcast. So, if you love the podcast and you wanna support us, you can donate on our website at reprosfightback.com, and we have fun things that you can get by donating. So if you give $25 to support rePROs, we have four amazing stickers that we had Liberal Jane designed for us and a postcard that you'll get for your $25 donation. They're super fun. I love all of them. Some of them maybe even feature my cats. And then for $50 you get all of that. Plus, we have this amazing canvas bag that I love—I think it's super cute—that says "abortion is a human right, not a dirty word." So yeah, if you support repos and wanna carry around some of our swag or have some of our stickers, please feel free to donate on our website at reprosfightback.com, $25, you get the stickers and the postcard for $50, you get stickers, postcard and bag. So yeah, if you support us, please feel free to donate. Okay, let's see. Let's follow up on a conversation I was having with you all in the last episode. It was recorded before Labor Day weekend, and I said I had these amazing peaches from my Fruit of the Month Club that I hadn't done anything with yet. So I decided to make peach cobbler using the Sweet Feminists recipe. And y'all, if you aren't following her on social, you totally should. And also she has a great cookbook, which is where this recipe came from, called Baking by Feel Recipes to sort out your emotions. I love the peach cobbler. I've also made some other things from that cookbook that were also just as delightful. So really it was like the perfect, like sweet little bite for, to carry me through the weekend and to use up those amazing peaches I had. So it was delightful. I'm gonna have to think about what I'm gonna make this weekend though. I think I need to make some bagels. Like I feel like I've made some sweets recently and maybe I need to, like, turn to some savory baking. It's been a little while, so I think that's what I'm gonna do this weekend. Maybe some pumpernickel bagels. Those sound really good. Yeah. Mm. Okay. I think with that, maybe we'll just turn to this week's interview. It's kind of a long podcast, but y'all, you are not gonna wanna miss any of it because I had such a wonderful conversation with Kate Kelly at the Center for American Progress. We're gonna talk about something that we have not talked about on the podcast before, and that is the Equal Rights Amendment. And y'all, I couldn't think of a better person to have come on the podcast to talk about the Equal Rights Amendment than Kate. So, I am so excited for our conversation. It was so much fun. I learned some things that I didn't know, and yeah, definitely worth sticking around for the whole thing. So with that, let's turn to my interview with Kate.

Jennie: Hi, Kate. Thank you so much for being here today.

Kate: Hey, thanks for having me.

Jennie: I am so excited to have you on. We have not talked about the Equal Rights Amendment yet on the podcast, which one I can't believe, but two, I can't think of a better person to have on than you to talk about it.

Kate: I'm just excited that your audience is about to be ERA pilled. So, woo!

Jennie: Okay. But before we jump in, because I do get excited and like, let's talk about the thing. Maybe we should, like, hey, would you like to introduce yourself and include your pronouns?

Kate: Absolutely. My name is Kate Kelly, I use she/her pronouns, and I am newly minted the senior director of the women's initiative at the Center for American Progress.

Jennie: Yay! Congrats. I was so excited to see that. And that meant I could have you come on. Yay!

Kate: I know, I know. I am most recently coming from working in Congress for the past two Congresses, so I wrote the speeches I didn't give them. And yeah, it's different to be back in the space where I can speak for myself.

Jennie: I'm so excited. Okay, because we've not talked about the Equal Rights Amendment on the podcast, I feel like we need to lay some groundwork before we get to like what's happening. So, what is the Equal Rights Amendment?

Kate: Welcome everyone to the most powerful and important change that we can make in our lifetimes. The Equal Rights Amendment is an amendment to the Constitution to protect people who experience discrimination on the basis of sex. Its main clause is 24 words. It's very simple and straightforward. "Equality Of rights shall not be abridged or denied by the United States or any state on account of sex." That's it. Fits on a T-shirt. That's what the ERA is. It was first proposed in 1923. So, we have just passed the 100 year anniversary of the Equal Rights Amendment, which is not a celebration as we'll get into more later on in the podcast because it's not across the finish line yet. And whenever I talk about issues surrounding gender inequality and gender justice in this country and how we reach it, you always come back to the Constitution, you know, what's unconstitutional? What are our constitutional rights? What can we use to protect us? And when you think about the Constitution, think about when you were in elementary school or middle school and you learned about the Constitution and you saw a painting of who wrote and signed the Constitution, you will notice in your mind's eye that the people who wrote and signed the Constitution were all men, but not just men. They were white property owning men. They were some of the richest people in the world at the time. It was like if just Bezos and Elon Musk and [laugh], these, you know, bill Gates got together and wrote a document and we're like, "all right, let's write a document to protect us and people like us and our vast, vast, vast wealth," which was of course mostly held in people that they owned because most of them were slave owners and slave breeders. And so, those are the people who wrote the Constitution, and that is who the Constitution was written for. They did not consider Native people, people brought from the African content for the transatlantic slave trade, women of any race or ethnicity or national origin. Certainly not queer people. So, none of those categories of people, no one else was considered to be part of the Constitution. And this wasn't just like old-timey times, like they just didn't think about it. You know, women at the time were advocating to be in the Constitution. Like, they participated in the revolution, quote unquote. They had wives, they had peers, they had writers, they had, you know, Abigail Adams for example wrote frequent letters to her husband who was participating in the Constitutional convention. And she said explicitly the famous quote, which is, "remember the ladies," but she also said, "we will foment a revolution if we are not included." Like, we will not abide by a document that does not also protect us. And so, women at the time were saying that they wanted to be included in the Constitution. Spoiler alert, we were not. So, the Equal Rights Amendment as introduced in 1923, was shortly following women winning the constitutional right to vote the 19th Amendment. So, immediately they got the right to vote. And though not everyone obviously could fulfill that right. They got the constitutional right to vote. And immediately were, like, okay, we did that. We learned how to amend the Constitution, now we're going to introduce a new amendment because now we can vote. And now we want fundamental equality. And that is what the Equal Rights Amendment is. It's fixing a foundational mistake in our foundational document. And I can get much more into the ratifying process and, like, where we are and all of that. But that's what it is at the end of the day. It's fixing what is wrong and always has been wrong with our constitution.

Jennie: I love that it's, like, so simple, right? You said it could be on a T-shirt, it fits on a T-shirt, but, like, such huge ramifications in so many spheres of life.

Kate: Yeah, the main, and I think part of the reason it's so difficult for people to understand what it would mean or be is because it's not like, you know, when we won marriage equality in the Supreme Court and one day queer people couldn't get married in every state and the next day automatically they could, everything changed overnight, right? That's not what the Equal Rights Amendment would do. It's like any other amendment, like, think of any amendment that you can think of. Like, most normal people probably can't think of any amendments off the top of their head. But the Second Amendment or the 14th Amendment or the First Amendment and free speech, think of what those have come to mean and how powerful they are. And perhaps in a problematic way, when you think about the Second Amendment, like how powerful of a protection that has come to mean and how central to our democracy and functioning it is, that is what the Equal Rights Amendment can be. And the two ways that it kind of is most easy to understand how it will help us is it will help with both litigation and legislation. So, when you're trying to win a case, if you've experienced discrimination on the basis of sex, like I said, those are the final words of the amendment on the basis of sex," which doesn't mean just sex. In the legal world, sex also means sexual orientation, gender identity, gender expression, these other things and categories are also included under that one term sex. So people who do experience discrimination on the basis of sex currently do not have as good of outcomes. For example, they experienced discrimination on the basis of race or national origin or religion. If you experienced discrimination on the basis of sex, it's harder to win your cases. So, this will completely take it out of this 14th amendment intermediate scrutiny, levels of scrutiny, which really just means judicial review. So, right now, discrimination on the basis of sex does not get the highest standard of judicial review. We don't even have to deal with that anymore. It will be its own amendment, a brand-new amendment from which we can litigate cases and win them. Then the second thing and the thing that people don't think about as much, you know, like I said, the first clause of the Equal Rights Amendment is "equality of rights shall not be originated by the United States or any state on account of sex," that's the first clause. That's the main clause. But the second clause of the Equal Rights Amendment is equally important because it expressly says that Congress has the power to enforce. So, that gives Congress a totally new hook to pass new and more robust laws to prevent and vindicate discrimination on the basis of sex. So, there are so many laws that we can't have because there's no, Congress has very limited powers. So, I just wrote a piece that's coming out. The 30th anniversary of the Violence Against Women Act is coming up on September 13th. I wrote a piece about the initial Violence Against Women Act that included a private remedy, so a way for survivors of violence to sue their attackers for a federal civil remedy. This piece of VAWA was struck down by the Supreme Court in the year 2000. So we still have VAWA, but we do not have the private civil remedy. And the reason they gave is that suing your perpetrator does not have enough to do with the interstate commerce clause, and it doesn't have enough to do with the 14th Amendment. And so, there isn't any way to pass it. It's not that violence is okay or permissible or anything, but it's just, it's unconstitutional. It's not in the Constitution. Gender's not in the Constitution. And so this, putting these words and cementing them into the Constitution would put us in there. They would no longer be able to say- no matter who the justice is, they would no longer be able to say that gender is not in the Constitution and, and we're not protected. And so we would be able to get a whole new slate of laws basically inconceivable in our current regime, to build that infrastructure, to get us gender equality. So, it would help us with litigation, it would help us with legislation, and that's how we're going to build, like I said, that infrastructure for equality.

Jennie: I love having good concrete examples 'cause again, like you said, it's so big that it can be hard to grasp onto what it would mean. I think one that's maybe also really relevant to the podcast is: what does the Equal Rights Amendment have to do with abortion?

Kate: So glad you asked. So, immediately when the Dobbs decision was leaked before the actual decision came down, which as we then found out was very similar if not a carbon copy, I wrote a piece in the LA Times saying the number one way to save abortion is to ratify and finalize the Equal Rights Amendment. And so far we've been talking about the federal constitution, but there are many states, you know, when we didn't quite get across the finish line in the 1970s, there were many states that passed their own Equal Rights Amendments. So, there are actually 27 states that have state level ERAs in their state constitutions. There's varying levels of language, and then there are also states that are currently passing them. So, I'll give you an example when it comes to abortion Nevada in 2022, I randomly moved to Nevada for several months and literally drove a monster truck, an equality monster truck all around the state. I went to the Nevada Day Parade in Reno. I canvased all over the state. I organized for months because they had a state level equal rights amendment on their ballot. And the Nevada state ERA is an expansive modern ERA. So, they had sex like the federal ERA, but they also had race, color, creed, national origin, religion, age, gender identity and expression, which is very-

Jennie: Important.

Kate: -new, important, and unprecedented. No constitution in the world has gender expression explicitly in their constitution. So, it's really just like absolutely groundbreaking. So, this is the constitutional change that I went to fight for. We won in 2022. There was a democratic governor incumbent who lost, there was a senator, a US senator who won, but only won by less than 1%. So it was like razor thin and contrasted to those candidates. Equality is wildly popular. The Equal Rights Amendment won by 57% in Nevada in that same election. So, people love equal rights and will come out and vote for it. So, we won. That was in 2022. We're only in 2024. So that's, it's only been two years since we got that new ERA that ERA has already been used to strike down their state level Hyde amendment in Nevada. So their Supreme Court, the Nevada Supreme Court decided that it is discrimination on the basis of sex to single out one procedure that only one group of people can access and need access to and prohibit it from getting state funds. And so now—again, this is two years out—because we did that work in Nevada, people cannot only access abortion but have it paid for. This has also been true, there's a new decision out by the Pennsylvania Supreme Court using their state level equal Rights amendment, which is from an earlier version, it's from the 1970s and it's not as expansive, it just has sex. But that Pennsylvania Equal Rights Amendment has also been used to strike down funding bans. The same thing is true in New Mexico. The same thing is true in Connecticut. So, it's being very effective on the state level to strike down not only bans, but also restrictions. So, I give that example to say what we're seeing on the state level is also possible on the federal level. We lost Roe v. Wade. It was overturned. And part of the reason is obviously we need Supreme Court reform and very biased anti-choice judges are stacking the court. And you know, I think it's seven out of the nine justices were raised Catholic. Like, it's a very anti-choice, very intentionally chosen group of people for that express purpose. That's a problem. But the other problem is the document they are interpreting, they do not believe and in part are right, that the document they're interpreting and reading does not prohibit discrimination on the basis of sex. So, if you're an originalist, which is a garbage modern invention, to strip away people's rights that are legitimate and hard earned. If you're an originalist, you have to believe two things. One, article five of the Constitution exists, which is how you amend it and change it. So, the founders thought it would be, and it is possible to change it. And then the second thing is if you meet the qualifications, then you can change that constitution. And those new words that are in there are how it's to be interpreted. So am I saying like tomorrow, Amy Coney Barrett, if she read the ERA would be like, "you're right, I changed my mind about everything. I'm basically like an anti-choice robot raised from birth to strip away your rights. And now like, 'cannot compute cannot compute.'" No, I don't believe that. But what I do believe is it will be a tool for future courts to not only regain the access we had, but expand. Because it's a totally different tool. It's a completely different hook. And we don't know how many justices will cycle through in the next four years, in the next eight years, and this will provide them a tool. And the last thing I'll say on this point is it's not a piece of legislation. So don't think about it like the Equality Act or like WPA or these other important pieces of legislation. It's not a law. It is a constitutional amendment, which means it is permanent. Once we get it in, they can't take it out. It will be here in 50 years. It will outlive every single person currently on the Supreme Court and in Congress. It will be here in a hundred years. It'll be here in 200 years. It's a permanent part of our legal infrastructure. And so, that's why I started off the podcast by saying this is one of the most important things that we can all work toward because it can't be taken back by the whim of who's in Congress, who's not in Congress, you know, which majorities they have, which majorities they don't. It is a permanent change to the US Constitution on par with the First Amendment, the Second Amendment, the 14th amendment, like these, these revolutionary democratizing amendments.

Jennie: You have sold me. It's so big. But I think one of the next, the next step is like, so, what's the current status? Like what's currently going on? 'Cause it's a little complicated.

Kate: Yeah. And it's complicated for a reason. It's complicated because people who oppose equality don't want it to happen. Like, the accounts that I follow most closely on the ERA are anti ERA accounts because they are watching it like a hawk. They know every step. They're 10 steps ahead of us, procedurally, they are constantly fighting, constantly talking about it constantly. And those groups are anti-choice groups. To be very clear, the people who oppose the Equal Rights Amendment are explicitly anti-trust groups. The US Conference of Catholic Bishops has a whole thing they call the ERA project. They watch it very closely. There's a hearing on the ERA in the Senate in Maine. They show up. They are constantly advocating against it because they know its power and potential more than we do [laugh]. If there's anyone who's ERA pilled, it's the opposition, it's the anti-choice opposition. They know it's power. And so, I say that to say that our constitution is one of the most difficult to change in the world. And one of the fewest longest existing and fewest altered in the world. Article five of the Constitution governs the amending process. There are two ways. One's a constitutional convention and that could be a whole 'nother podcast 'cause that's terrifying. They're dangerously close to...they would love to achieve a constitutional convention in order to strip us of basically an entire bill of rights. Yeah, we'll put that aside. There's a second way. And the second way is it is passed in Congress by two thirds of both houses and ratified by three fourths of the states. That's a very high bar.

Jennie: That is such a high bar.

Kate: -which is why we only have 27 amendments and 10 of those were, you know, in the initial bundle. So it's very, very, very, very hard to change our constitution. This is why, again, I'm such an ERA zealot is I think it's our only chance conceivably in our lifetimes. And the only reason it's conceivable is most of the work is already done. So it was proposed, like I said, in 1923, it was passed. It got a resurgence with the women's liberation movement and the invention of the National Organization for Women. And I got a resurgence and Gloria Steinem and her ilk picked it up in the 1970s. And it was passed by both Houses in 1972 by more than two thirds. So imagine a gender amendment today...only eight senators voted against it. It's inconceivable.

Jennie: It's like, I couldn't even think of it like how something like that would happen today.

Kate: It wouldn't. That's why, it wouldn't. But at the time, women's rights was so wildly popular that it was a bipartisan issue. It was on the platform of both the Democrat and the national platforms. Like, we just had the DNC happen and they read out their platform and yada yada. It was on that, it was on the federal platform of both the Republican and the Democratic parties. And it was just considered something that was gonna happen. The problem is they, in order to bypass some anti-rights senators, they agreed in a procedural move to attach a deadline to the proposing clause, a seven year deadline, which they did not agree to for the 19th Amendment. The suffragists were like, absolutely not. There will not be a deadline. Whenever we get this done, we get this done. Like, even if it takes a hundred years. So they passed it in 1972, they sent it to the states, Hawaii ratified it on the same day. Because of the time difference, the Hawaii legislature ratified it on the same day. There were 30 states in that first year that immediately ratified it. There was basically no opposition. But what happened towards the end of that decade is that there ramped up a very opportunistic woman and movement who was virulently, anti-choice and very Catholic. Phyllis Schlafly ramped up an anti ERA movement. This became part of what's called the Long Southern strategy. We know the southern strategy about racism, and that was certainly part of it. But it was three-pronged. It was racism and segregation coupled with anti-feminism and fighting the ERA coupled with Christian nationalism. So these were three parts of the long southern strategy and people often forget the anti ERA portion, but it set the stage for basically everything we're living today, including Trump. Phyllis Schlafly was the first person on the conservative right to take him seriously and back him, and Trump actually spoke at her funeral. So, we have her.

Jennie: God, I forgot that.

Kate: Right? It's crazy how much her legacy has impacted us and continues to in a negative way. So this woman and the movement, you know, of anti-choice legislators behind it, attached this deadline to the proposing clause. Most people who supported the ERA weren't worried about it. Like, they were just like, it's so popular. You know, it's like, it's yeah.

Jennie: Like, why would they be? It's gonna sail through.

Kate: And it's interesting because the woman who initially drafted the ERA, her name is Alice Paul, she was a suffragist. And one of the reasons that we have the right to vote. So, Alice Paul was still alive. She wrote it in 1923, and she was still alive in 1972 and working on the ERA. I've heard this story directly from one of the women who was involved. And she said they passed it in the Senate. They ran over to her house, which is right on Capitol Hill. It's now the Sewell Belmont House.

Jennie: And my office.

Kate: Yes! Everyone, if you come to DC please visit the Sewell Belmont Women's Equality Monument. It is amazing. It's where Alice Powell lived. Tiny sidetrack about that—it was the headquarters of the National Women's Party, which was initially in the place where the Supreme Court currently is. But they took that by eminent domain, literally bulldozed over women's rights and the National Women's Party to build the current Supreme Court.

Jennie: Honestly, if there was a script, like, if this was a script, they'd be like, that's too on the nose. Like you can't, that's too, like you can't do that. It's so obvious, like, way too much symbolism. Oh my God, it's so how did I not know that? That is wild.

Kate: Mm-hmm. Yeah. And that, so that's why it's where it is now, which is in between all the Senate buildings. Yeah. Because they bulldozed it, built the Supreme Court and made the National Women's Party move their offices. And they didn't want to, they didn't sell it to them. Like this was against their will. So, what a perfect metaphor.

Jennie: I know! Oh my God.

Kate: For everything we live today. So they ran over from the passage of the ERA wildly popular again, only eight senators voted against it. And they ran and they found Alice Paul weeping at her desk. And they said, why are you crying? We won. You know, we did it. It's over. And she said, the concession they made to include a procedural hurdle will kill it. And this was essentially her prophetic vision. Like, she knew she had worked on it for so long and been through so many fights. Yeah. To keep it out that she knew that this concession that they had made was, was a mistake. So what happened, again, it was so wildly popular, like, you know, it came to the end of the time period that they had put in this proposing clause and 100,000 people marched in DC to extend the deadline. Like imagine today, like, I don't think even 100,000 people know that the ERA exists today. So, physically came to Washington and marched on Capitol Hill to extend the deadline. So, the senators were faced with a choice. They basically, like, lose your election or extend the deadline because so many people cared. And so many people had fought so many battles in these states, so hard to get it ratified. And so, they basically pulled a trick where they extended the deadline from 1979 to 1982. They extended it three years saying it'll just round it out to 10 years. Why? Why didn't they just eliminate the deadline? But the real reason they did three years is because three years was too short of a time to replace the anti ERA senators at the state level 'cause those are four or six year terms. And so they knew, okay, we're going to "extend the deadline," quote unquote, but we're going to, procedurally we're still gonna win. And it was also coming down to the more difficult states. So if you look at a map of the states that have not ratified the Equal Rights Amendment, it's basically also a perfect map of states that have banned abortion. So, these are very inextricably tied concepts and always have been because people know that to discriminate against a person and not allow them a medical procedure they want or need is just blatant discrimination on the basis of sex. This is very clear. And so again, if you look, if you just Google ERA, look at any map or look at the piece that we just wrote for Cap about the procedure, you'll see the map is very familiar. It's basically the south and the, the Mormon states, the Intermountain West. So that was that. In 1982, folks, Phyllis Schafly declared it dead, it fell three states short, everyone kind of moved on. Or so we think. There were still these like die hard ERA people in the states that hadn't ratified year after year after year trying to revive it. One woman I met had done a solo ERA walk from DC to California.

Jennie: Oh my goodness.

Kate: I know, hero, like absolutely a hero. I write about her in the first chapter of my book because she, which is Ordinary Equality, check it out. But she stopped in Utah. I was in Utah and she stopped in Utah and she was like, I'm meeting with senator, Senator Hatch's office. And so she's like, come with me. We're talking about the ERA. I'm like, what? But there, so there were some, some diehard women who never gave up. Fast forward to 2016, we'll all recall that terrible day. And because of what happened in 2016, there was a resurgence of people thinking like, what can we do? Like what can we do to protect ourselves?

Jennie: Side note, back to the Belmont Equality Monument, because again, it's right by my office. I obviously went and took my picture there on election day voting for the first woman. And so just putting the pieces together.

Kate: It's such a special place. I really, yeah, yeah, I really do hope folks will go. And so 2017 happened, we all marched, we all organized, and one particularly astute and incredible visionary, I say prophetic, I was raised very religious. But I don't mean that in this, in that way. I mean that in the way that she could see beyond, you know, our current struggle to something that needed to happen. And her name is Pat Spearman. She is a queer- lesbian, sorry, she would correct me. She's a lesbian preacher in Nevada, who's also a senator. And she introduced an ERA ratification bill. And everyone in the Nevada Senate was like, what? Like, that thing from the 1970s? Like, what? And she's like, yes. And they're like, oh, that's, you know, it's too late for that. And that's just purely ceremonial and like, what's the point? And she's like, okay, let's assume it is. Why not? Like, why not do it then? And she's like, symbols and ceremonies have a purpose. If that's your argument, like just vote for it. So, one key thing about Nevada that's very important is they have a female majority legislature first ever in the country. And so, Pat Spearman led this group of incredible women and male allies, and they ratified the Equal Rights Amendment in 2017. This caused sort of a ripple in other states. And they were like, wait, is this a thing? Like, can we, like, you know, like people are just kind of like looking around like, is that, can we do that?

Jennie: We can do that?

Kate: So, turns out then it was ratified in 2018 in Illinois. Again, people had, you know, certain people had been fighting for it for a very long time, but they saw the moment and they said, "okay, now is our moment." There were also Republican supporters, you know, lots of folks really got behind it and ratified it in Illinois in 2018, which was a particular victory because that was Phyllis Schlafly's state. And the reason it had never been ratified in the first place. So then we're like, okay, if you're doing the math, we were three states down and now we're two more states up. So like, what's the deal? Like, are we gonna get it? And then in Virginia, in 2020, they also ratified. And they had been working, you know, tirelessly for years. Jennifer McClellan, who's now in CongressI think she'd introduced the ERA for 12 years. So, she was just like og, like ERA stalwart for years and years and years, really, really believed in it and is a brilliant and very talented member of Congress. There's no one more deserving. And so Jennifer McClellan and others got the ERA ratified. So now we're like, okay, again, like, okay, one, two, like we're there, you know, like we were missing the three in the 1970s, now we have the three. So, what do we do now? Like, is it done? Like, what's, you know, what happens now? So, that was a very open question and remains an open question to this day. The most recent precedent we have is the 27th Amendment. And like, if you're listening now, think in your mind, do I know what the 27th Amendment is? You definitely don't. It had to do with congressional pay raises, which was a big thing in the 1990s. And so it's a very long story, but there was a student who wrote a paper on the 27th Amendment. His teacher gave him a C and said it could never be ratified. And he basically made it his life's goal to get the 27th…

Jennie: Spite, man. Spite will get you far.

Kate: Spite. So, he resurrected this fight. They got a whole bunch of new states to ratify. It's called the Madison Amendment because literally it was first proposed by James Madison. So, 202 years later they ratified the 27th Amendment and everyone did the same thing. They're like, wait, okay, is this like, did we do this? Like, is this part of the constitution? And then, the statutory requirement, this isn't part of the constitution, but like the law is, okay, once a state, once enough states have ratified the person who's to log those ratifications and certify them and then publish it as an amendment in the federal register, that's the archivist of the US. So, like, you've seen the movies and the national archives and where the Constitution is, like, that person is the person who makes a list, gathers up the ratifications, signs it and publishes it in the federal register. And that's when it becomes an amendment. Or at least recognized as one. So, that person in the 1990s for the 27th Amendment, just his name was Don Wilson. And he just did it. Like, he didn't wait for Congress, he didn't wait for the president. He's just like, the thing that he says is, I didn't feel like if I intervened and didn't ratify or didn't, you know, certify it.

Jennie: Like, that's taking an action.

Kate: That's taking an action that "I'm just some librarian. Like, I don't-

Jennie: Yeah.

Kate: I don't get to decide what's in the Constitution. I just get to do my little job. Like, I just get to stamp it and send it to the next thing." So, he did that. After that Congress was, like, confused and it was, like, well we get to decide what's in the Constitution so we're gonna pass a resolution but it was after he had already done the thing. Fast forward to our most recent ratification, which is 2020 in Virginia. The archivist at the time, my sworn enemy, David Ferriero, he asked, called the Office of Legal Counsel—he's part of the administration, so it's like the lawyers for the administration. “What should I do? Should I ratify the ERA?”

Jennie: I wonder what they would say.

Kate: And guess who the president was at the time. So, the Trump OLC—spoiler alert again—said, don't do it Dave.

Jennie: Don't you dare.

Kate: Like, don't do it. SOS it's too late. It's dead. Don't do it. So he didn't. And that is the position we're in now where three additional states have ratified. Even more are trying to ratify now. Some states in the 1970s when Phyllis Schlafly kind of had her heyday tried to rescind their ratifications—five states. So, it's a numbers game and everyone is like, where does it stand? Is it in the constitution? The current archivist is a woman. So, it's the first ever female archivist, her name is Colleen Shogun. And Colleen, bless her heart, in her confirmation hearings, again, these Republicans who are watching, watching, watching, watching. First question she's asked-

Jennie: Asked about it.

Kate: -first question she's asked is about the Equal Rights Amendment. And so, they were watching like a hawk and they're like, we're not gonna confirm someone who is going to give us equality. So, she was asked about it and basically her answer was—and again bless her heart, she needed to get confirmed—she said, I'm not gonna do anything unless I'm instructed otherwise. So that's where we're at. Like someone—and by someone, I mean the president of the United States—needs to tell Colleen, [snaps] let's get on it, girl, you know, let's do it. She's, again, these people are librarians. This is not like Profiles in Courage. Like this is, these are not politicians. These are librarians whose job is keeping documents safe and like teaching our nation about history. Her specialty, one of her specialties is suffrage, ironically. And so she actually participated in the centennial of suffrage and led that for the White House. Like, she knows this history, she's taught it. And so, that's where we're at. Like, we need the archivist to acknowledge that the ERA is the 28th amendment. Many, many people—this is not just my fringe theory [laughs]—the American Bar Association two weeks ago passed a unanimous res-, actually I think four men voted against it, passed a resolution. I know. One woman, one friend of mine was in the crowd and she's like, I heard four nays. They were all men.

Jennie: What?

Kate: So, they passed a resolution in support that the ERA is the 28th amendment and that it should be currently enforced. This is the preeminent, like, most ascribed to most members like legal association in the country. Wow. The ABA, the American Bar Association, two weeks ago said the ERA is the 28th amendment. And so, it is becoming the position that the ERA is the 28th amendment and just needs to be recognized by the federal government is becoming more and more and more popular. Kirsten Gillibrand in the Senate has taken on an ERA resolution and introduced it along with Cori Bush. Full disclosure, I wrote that resolution. It's excellent if I do say so myself. Has been a real champion of the ERA, gave a speech at the DNC about the ERA first time probably in 40 years that that's happened. And so, it's really picking up popularity and people are realizing like, we can't get away with these patchwork fixes. We can't get away with just putting tape on a problem. We have to have a fundamental fix. We have to change the most basic, the most foundational document in order to not only get back our rights. As we all know, Roe was just not even a great floor. It was a flawed framework written by men for men. And it's not just to get back what we lost, it's to build a totally different future. And it's the infrastructure and the foundation we need to build that future. And so, that's where we're at. One signature away.

Jennie: Okay. I did not come into this episode expecting to feel hope. So much hope. Like, things felt bleak and obviously the issues we work on can be pretty bleak. So finding hope is kind of rare and I feel hopeful. So, thank you. Yay!

Kate: Yay!

Jennie: Okay. To push that hope forward. I always love to end with what can our audience do? Like how can they get involved in this?

Kate: If you made it through this entire podcast, you're a hero [laughs]. And so 10 stars, I think learning about the ERA. So, we just recently issued a new piece from the Center for American Progress, the Women's Initiative. You can check out that piece to learn more about this procedure of posturing and what you can do. So, I would say learn about it, talk about it. I would say, and this is probably what everyone always says, but I think contacting your representatives both at the state and federal level. So, you know, there's, like I said, there are 27 states’ easy maps to find out where if your state has one or doesn't have one, if your state doesn't have one, and you can be part of that local fight. I think some of the best work that's happening, particularly when it comes to reproductive rights and freedoms, is on the state level. So for example, in New York, there is going to be a state level ERA on the ballot this November. It is a comprehensive ERA that includes the words "pregnancy" and "pregnancy outcomes." So it is explicit, like those words are gonna be in the constitution of New York state so people can get out for the current fights. There's also one in Minnesota that almost passed that’s also an expansive ERA. There's fights in Maine, in Oregon, in Vermont. There's lots of new states that are also updating their previous eras. So you can get involved at the state level and then contact your federal representatives. I just came from Congress. Many, many, many times I heard, "the ERA, I don't get calls about the ERA. I get calls about immigration. I get calls about student loans. I get calls about abortion. I get calls about so many other things. I do not hear from my constituents about the Equal Rights Amendment." And so, that needs to change. And there are some incredible people in Congress doing incredible work to be leaders on this issue. Ayanna Pressley and Cori Bush founded the first ever ERA caucus. This Congress, it's already the fifth largest caucus in Congress and many representatives have joined it. So you can, there's an ERA caucus website and you can find out if your member is on it or not. So, that's a super easy ask. Like, you know, obviously cosign the resolutions to support the ERA, but also join the ERA caucus. I noticed on the website you are not part of it. Become part of it. That is important to me. And then the last thing I will say is just the simplest, which is bring it up as a solution. The way that the Equal Rights Amendment got on the platform of the National Organization for Women is Alice Paul and these other older women, who'd literally been around for the suffrage fight, infiltrated their first policy meeting, sat in the front row, raised their hands and were like, our policy platform should be the Equal Rights Amendment. And that's how it got on the platform. So, if you're part of anything, if you are part of a, you know, a county group or if you're part, there's a lot of states and also localities that have passed resolutions in support of the Equal Rights Amendment. I live in DC and I'm trying to get a DC city council resolution in support of the Equal Rights Amendment. So, you can do a city council, you can do a county council, you can do a state resolution. Basically at any level that you're engaged and involved, bring it up to people, let them know there's an entire lost generation that you and I are a part of that, you know, basically spanned from the second wave to now, where people didn't know about it. So if you're anywhere under the age of 40, you don't know about it and it's not your fault. You didn't know about it because it's not in public discourse. So, we need to right that wrong. We need to make it part of public discourse. And like you said, it's hopeful. We are so close to changing the constitution, I can taste it. And so, that kind of pressure needs to be made there. Politicians need to understand this is an issue people care about. This is an issue people show up for. This is an issue people will vote for. This is an issue that people will turn out for. And so, talk about it, bring it up. Learn more about the history. I have a five season podcast called Ordinary Equality. If you're just like, okay, I'm on the ERA train and I wanna know more, Jamia Wilson is my co-host. And we talk about, we have an entire season about ERA and abortion. I wrote a book about the ERA, it's called Ordinary Equality. We're gonna be doing a lot more at the Center for American Progress on the ERA. So just get dialed in and throw it in casually in your convos.

Jennie: I mean, definitely don't underestimate the power of talking about it. That's so important. And I definitely agree with Kate's. Like if people aren't calling their representatives and they're not hearing...your voice can make a huge difference to be one of a few. I mean, I think that's one thing I always try to impress when I say we talk about like international family planning, we're not talking about a huge group of people that are calling that your voice is competing against. So, being one of a couple makes a huge difference.

Kate: Yeah. And these state level ERAs, like I understand that the conceptual reach of the federal ERA is a little more difficult to grasp, but like it happened in Nevada in 2022, we did it and it's already working. Like, this is not a conceptual project. This is happening. It's happening in New York, this year it will be on the ballot. So, it's so achievable. We can do it. It will protect abortion access because it is protecting abortion access now.

Jennie: Kate, thank you so much for hope, for all of the information on the ERA. Thank you for being here.

Kate: Oh my gosh, thank you for having me.

Jennie: Okay, y'all, I hope you enjoyed my conversation with Kate. I had so much fun talking to her and y'all, I cannot get out of my head that they literally declared eminent domain on the National Women's Party House and tore it down to put up the Supreme Court. Like, that just feels so on the nose that they tore down the building where people were working for women's rights to vote and on women's issues to build the Supreme Court. Like it just feels so spot on. Wow, it really, it blew my mind. I had no idea. And that's gonna stick with me for a while. But also it was delightful to get hope coming out of that conversation 'cause we could all use a little hope now. So with that, thank you all and I will see you next week. [music outro] If you have any questions, comments, or topics you would like us to cover, always feel free to shoot me an email. You can reach me at jennie@reprosfightback.com or you can find us on social media. We're at @RePROsFightBack on Facebook and Twitter or @reprosfb on Instagram. If you love our podcast and wanna make sure more people find it, take the time to rate and review us on your favorite podcast platform. Or if you wanna make sure to support the podcast, you can also donate on our website at reprofightback.com. Thanks all!