On Friday, October 28, the Columbia Undergraduate Law Review (CULR) hosted Columbia Law School Professor Ting Ting Cheng, director of the Equal Rights Amendment project at Columbia Law School, for a conversation about the history of the ERA movement and the potential of ERAs for individual states. Events Editor Ava Slocum attended the discussion (which was moved to Zoom for COVID-19 concerns).
We are a week away from Election Day for the 2022 midterms, with questions of gender and reproductive justice on the ballot for many states. The Columbia Undergraduate Law Review’s event last Friday, “Reimagining Gender Justice with the Equal Rights Amendment: A Conversation with Ting Ting Cheng at Columbia Law School,” looked ahead to this month’s midterms and back to the past for the discussion about the history of the ERA in the United States and its continued push for ratification.
Ting Ting Cheng is a civil rights attorney and activist with experience in gender discrimination litigation. She was the legal director of the 2017 Women’s March on Washington and worked as a public defender and an immigration defense attorney before her current role with Columbia Law School’s Equal Rights Amendment (ERA) project.
Friday’s event also commemorated CULR’s annual High School Essay Contest, with the winners tuned in to the Zoom call. This year’s contest theme centered on gender justice, and before Cheng’s discusison, the (intimidatingly accomplished) high school students in the meeting all briefly described their essay topics, ranging from international law on sexual violence to Brazilian responses to gender justice to equity for transgender people in medical care. At the start of the meeting, Cheng congratulated the winners, saying that the thought that they put into their essays “really gave me hope” because “I think we’re in a pretty dark time in American history[…]so having these essays out there in the world really brings me hope.”
We certainly might seem to be in a dark time right now, with midterm elections on the horizon. Cheng referred to the enormous stakes for many states in the upcoming election with regard to gender and reproductive justice, now that “the Supreme Court has taken away fundamental rights, and[…]our political system is bearing toward more and more extremes in that form.”
Columbia Law School’s ERA project, which started just over a year and a half ago, works to develop strategic legal expertise and guidance to promote the final ratification of the ERA to the US Constitution. The project also focuses on thinking more broadly about the role of the ERA in redefining gender norms in America and how the ERA would impact gender and sex discrimination laws.
The ERA has a long and interesting history in the United States. Alice Paul and Crystal Eastman, leaders of the women’s suffrage movement, first drafted it back in 1923 with the goal of enshrining the idea of gender equality in the Constitution. The ERA didn’t make much progress in Congress until the 1970s, when a new wave of women legislators such as Representatives Shirley Chisolm (D-NY) and Martha Collins (D-MO) fought to make passing the amendment a top legislative priority. By 1972, the ERA had passed in both chambers of Congress with bipartisan support, and within a year, 30 of the required 38 states had ratified it. However, Illinois lawyer Phyllis Schlafly led an astoundingly successful STOP ERA campaign with the support of conservative activists and the religious right, which led in large part to the ERA’s expiration at the 1982 deadline, when it was, heartbreakingly, just three states away from meeting the three-quarters requirement for ratification.
Over the last few years, the record number of women elected to Congress and the #MeToo movement have generated new legislative interest in trying once more to ratify the ERA. Describing the new ratification movement, Cheng explained just how difficult it is to amend the US Constitution, which is problematic considering that the document “was written in the 1700s, and we currently have a Supreme Court, tasked with interpreting that document, who want to take us back to that time period, especially with respect to women’s rights and the rights of sexual and gender minorities.”
Cheng said that the rigidity of the US Constitution, one of the oldest in the world, is “really a national embarrassment,” and “something that needs to be fixed in order for a democracy to be fully functioning.” For this reason, not having an Equal Rights Amendment in place—despite nationwide activism on its behalf for the last hundred years—is an issue not just about gender and sex equality but about the health of our democracy.
The challenges involved in amending the Constitution are due in large part to the process’s specific requirements: to pass, an amendment needs approval from two-thirds of both houses of Congress and three quarters of all 50 states. At the time of its expiration at the ten-year time limit of the 70s, 35 states had ratified the ERA. In the last few years, Illinois, Nevada, and Virginia have all ratified the ERA, so the amendment now meets every requirement except for the time limit. But Cheng explained that the time limit is not part of the Constitutional ratification requirements but an act of Congress, and many members of Congress are trying right now to remove the original time limit. (The House of Representatives has passed the measure twice in two separate sessions, but it’s currently meeting opposition in the Senate thanks to filibusters and next week’s midterm elections.)
While we wait for national ratification, 26 states have already written state-level versions of the ERA into their individual constitutions. According to Cheng, lawmakers can use these state ERAs as tools to inform how the ERA would ultimately be interpreted on the federal level in the modern age, as well as ways to expand equality rights at the state level. “A lot of people haven’t heard of the ERA, or think that it’s something that died in the 70s,” Cheng said, “but it’s actually very much alive.”
In response to one of the event organizers’ questions about equal rights legislation from an international perspective, Cheng spoke a bit about her own background growing up in China and immigrating to the United States with her parents at the age of nine. In law school, she didn’t focus much on the ERA, since it was never robustly discussed or debated. “I think our Constitution and our laws are actually a little bit retrograde,” she said, “and need to be informed by other laws and other [countries] that have deeply embedded human rights into their constitutions and thought deeply about how to deliver that to the people.” One of Cheng’s grandmothers, who grew up in Shanghai, was one of the first women in China to earn a law degree in 1932 at a time when most women in America were not allowed to enter the legal profession. Cheng’s other grandmother, meanwhile, was a farmer who entered an arranged marriage at a young age and ended up becoming an influential member in her community in her own right. Both of her grandmothers’ stories, Cheng said, showed her how arbitrary forces outside of people’s control, such as where and when they’re born and what biological sex they’re born into, “can dictate your role and who you are in your life.” Given the arbitrariness of assigned roles based on gender, or any other characteristic, “we just can’t have a system that favors people above other people based on these arbitrary categories.”
Cheng also drew an interesting comparison between population control in the form of China’s former one-child policy and the current war on reproductive rights in the United States. The one-child policy, combined with America’s “current government structure and laws now preventing women from controlling their own reproductive destiny,” feels like “opposite sides of the same cruel coin when it comes to these like fundamental decisions over your bodily autonomy, and also whether, when, how, if you want to have families.”
However, Cheng sees the current state ERAs as a sign of hope even with the national ERA still unratified. Recently, there have been cases in New Mexico, Connecticut, and Pennsylvania of states using their ERAs to expand and protect reproductive rights. Columbia Law School’s ERA project submitted an amicus brief to a case in Pennsylvania involving a number of abortion providers challenging Pennsylvania’s ban on Medicaid-funded abortions for people who cannot afford the procedure. (Meanwhile, Medicaid covers “all sorts of medical procedures for comparable problems that men experience,” making the abortion coverage ban, in Cheng’s view, “a very clear-cut case of sex discrimination.”) Like Pennsylvania, Utah has one of the oldest state ERAs in the country, and Utah just used its ERA to partially circumvent its current abortion ban so people in the state can still get abortions even now after Roe v. Wade’s overturn.
According to Cheng, there is also a current movement to amend the constitutions of many states, which is exciting because “it’s basically impossible to amend the Federal Constitution.” Meanwhile, right now we’re at a moment where we can “really interrogate our existing legal system” and work to improve it, as lawmakers strive to ratify an ERA that is not just another Fourteenth Amendment for gender but something even broader that can create legal frameworks for substantive equality.
Toward the end of her talk, Cheng referred back to the high school and college students on the call, commending everyone for their civic engagement and involvement. “This is your history,” she said, “and I hope you know that you will have more power than me. You’ll have more individual rights than me, and you’ll have more tools to fight for. Not only your own rights, but the rights of everybody who suffers from inequality.”
The winning High School Essay Contest winner’s pieces are available to read on CULR’s website. Meanwhile, during her talk, Ting Ting Cheng recommended Jill Lepore’s New Yorker article about the difficulties of amending the United States Constitution. Finally, if you’re interested in learning more about the ERA’s path to almost-ratification in the 70s, in 2020 I really enjoyed watching the miniseries Mrs. America, with Cate Blanchett as the infamous Phyllis Schlafly, as an overview of these dynamic years in American history.
Zoom event screenshot via Ava Slocum