What would the ERA change?

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Feb 04, 2022 View in browser   By Katelyn Fossett Politico illustration Happy Friday, rulers! Before we get to the newsletter, we have a request. In 2018, California enacted a law requiring at least one woman on the board of every company based in the state. Did this law affect you? If yes, let us know. We want to hear from readers who have had personal experiences with the law and how it changed business and women's careers in the state. Fill out the form here.  Thanks to Maya Partharasarathy for helping to put together this newsletter. The Equal Rights Amendment might finally become a part of the Constitution. But what exactly would that mean? Last week, President Joe Biden called on Congress to pass a resolution recognizing the ERA, which would prohibit any state from discriminating against a person on the basis of sex. His speech reignited debate over the amendment, which has arguably been ratified by the required number of states but has been stuck in legal purgatory since the 1970s. Why hasn't the ERA become the law of the land yet? This is complicated, and full of disagreements at every level, so I'll give an abridged version.The ERA was approved by Congress in 1972 and then sent to the states, three-quarters of which would need to ratify it to add it to the Constitution (that's 38 states). But by 1977, only 35 states had ratified it. After decades of being stalled, three more states have ratified the amendment in the past few years: Nevada in 2017, Illinois in 2018, and then Virginia in 2020. Now, the number of states is at the required three-quarters threshold. Here's the problem now, though: The original proposed amendment set a ratification deadline of 1979, which was extended until 1982. The archivist of the United States, David Ferriero — the person who generally would be tasked with officially adding the amendment to the Constitution — has refused to add it, based on a memo by the Justice Department under President Donald Trump. That memo said the amendment is not valid because the deadline had already passed, and also because five of the 38 states have since rescinded their ratification. From here, it only gets more complicated. There are debates about whether deadlines and rescissions are even valid in constitutional amendments; about where such text should be in a proposed amendment for it to be considered valid; and a lot of other in-the-weeds legalistic parsing. But if we pull back from all of this, there is a deeper question I've been wondering about. In the year 2022, when discrimination against women is much different than what it was when the ERA was introduced, what would the amendment actually do? "I would argue that gender protections are not in the Fourteenth Amendment, but they are covered in the Civil Rights Act," says Jennifer McClellan, a Virginia state senator who was one of the lead patrons of her state's resolution to ratify the federal ERA. The Fourteenth Amendment says the government may not "deny to any person within its jurisdiction the equal protection of the laws." The degree to which it protects against sex and gender discrimination has long been a subject of hot debate. Because gender is not explicitly covered under the existing amendments, McClellan said, case law has shown that it is harder to convince a court that unconstitutional sex- and gender-based discrimination has taken place than it is for, say, race-based discrimination or an unlawful freedom-of-speech restriction. Because of the Fourteenth Amendment, laws that are subject to race-discrimination claims must meet the "strict scrutiny" standard, which places a heavier burden on the state. Research bears out McClellan's argument. Three political scientists who studied sex-discrimination cases in states that had state-level ERAs on the books found the amendment meaningfully changed the way judges ruled on those cases. "Our research shows that having a state-level ERA significantly increases the likelihood that judges will apply a higher standard of law in sex discrimination cases," one of the scholars, Lisa Baldez, wrote for the Washington Post in 2020. "That leads state-level courts to rule more often in favor of the person claiming sex discrimination." In an email, Representative Jackie Speier (D-CA) pointed to a handful of cases she said would be different if a federal ERA were in place. She referred to the case of Tracy Rexroat, whose starting salary at the Arizona Department of Education was $17,000 lower than that of her male colleagues because of her salary history. A federal court ruled that the reason for the discrepancy was valid, and as a result it did not violate the federal Equal Pay Act. That case, among others, "would, in my opinion, have had different results had the ERA been ratified, and that in turn would have benefitted countless women over time," Speier said. McClellan also argued that sex discrimination protections need to be in the Constitution itself, not just in a law. For instance, the Civil Rights Act could be amended or repealed. "It's unlikely, but it's important to understand that protections against gender discrimination are statutory and not constitutional," she said. But others argued the ERA could have unintended consequences if enacted today. Sarah Isgur, a former Justice Department spokeswoman and a POLITICO Magazine contributing editor, wrote in an email that "it's not clear that the ERA would even help women anymore." She pointed out that women now outperform men when it comes to college enrollments, master's degrees and valedictorian awards in high school. The ERA states "equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex," which means it could actually do more to help men if these trends continue, Isgur said. Opponents of the ERA claim that the track record of states with ERAs show another possible consequence of the law: additional hurdles to new abortion restrictions. If the ERA were added to the Constitution, some argue, restrictions on the procedure could more easily be deemed unconstitutional on the grounds that they perpetuate gender inequality. "Everyone knows this renewed effort isn't about women's rights," the office of House Republican Whip Steve Scalise told POLITICO in 2020. "It's about eliminating federal and state life protections and ushering in an era of taxpayer funding of abortion." In the late 1990s, the New Mexico Supreme Court ruled that the state's ERA required Medicaid funding for medically necessary abortions for poor women. However, many states with state-level ERAs specifying protection against sex discrimination also have abortion restrictions, including Texas, which has one of the most restrictive abortion laws in the country. There is another impact of adding the ERA: the symbolism of including women in the Constitution. While some might dismiss that as symbolic — indeed, I started out writing this wanting to focus on the material effects — others would argue that the omission of sex and gender from the Constitution is a massive one, and overdue for a correction. As McClellan says, "We are a country that, when founded … meant it when it said, 'All men are created equal.'"   Sponsored by Business Leader members of Women Rule: The Exchange: What will it take to build a new, more equitable workplace? POLITICO Focus connected with members of Women Rule: The Exchange to get their perspectives on some of the critical topics — diversity and inclusion, equal pay, mental health and family-friendly policies — that are driving this debate and will make or break the future of work for women. Read More   MARK YOUR CALENDARS -- White House National Climate Advisor Gina McCarthy will join POLITICO Live on Thursday 2/10 at 1:30pm ET for a virtual interview with White House correspondent Laura Barrón-López to discuss President Biden's challenging path ahead to fulfill his ambitious climate agenda. The interview is part of "The Long Game: Who Will Solve the Climate Crisis" event, which will kick off at 12:45pm ET with a panel moderated by Global Insider author, Ryan Heath discussing fresh data and insights on what citizens really think about how governments & businesses are dealing with climate & sustainability. RSVP to watch live. POLITICO Special Report AP Photo/Alex Brandon "Harris-to-Supreme-Court chatter opens window into Dems' deepest fears," by David Siders for POLITICO: "Shortly after news of Justice Stephen Breyer's retirement, William Owen, a Democratic National Committee member from Tennessee, texted the party chair, Jaime Harrison, with an idea that by then was already all over Twitter: Kamala Harris for the Supreme Court. "There was virtually no chance of it ever happening. Harrison responded that the vice president wasn't interested. And the White House — facing media questions about the possibility last week — reiterated President Joe Biden's plan to keep her as his running mate in 2024. "Yet if the Harris-to-Supreme Court chatter was a fantasy, what was revealing was that such an extreme scenario was running through Democratic Party circles at all, and has continued in the days since — not just on social media, but among the party's professional and political ranks. In interviews with two dozen strategists and party officials for this story, fully half of them either volunteered or said they'd entertained the idea, including both moderates and progressives. Among those who did not, several women and people of color were repulsed that Democrats were even talking about it, viewing it as an affront to Harris."   Sponsored by Business Leader members of Women Rule: The Exchange: The pandemic brought corporate America to a tipping point. Business leaders weigh in on the issues that will make or break the future of work for women.   "Why Adding a Black Woman to the Supreme Court Would Be Good for the GOP," by Zinelle October in POLITICO Magazine: "The Supreme Court is in the midst of a legitimacy crisis. Its public approval is declining and could get worse with the controversial and partisan decisions expected to come down this term. Against that backdrop, Justice Stephen Breyer's decision to retire offers both parties an opportunity to begin the slow work of repairing the court's credibility."As an American, a lawyer, and a Black woman, I am thrilled that President Biden has re-committed to nominating a Black woman to the Supreme Court. The president has already made history with the racial, gender, and professional diversity of the judges he has nominated to lower federal courts. This Supreme Court nomination is an opportunity for him and for Senate Democrats to continue their progress towards achieving a federal judiciary that reflects the American public."But this nomination also is an opportunity for Republicans. This nomination will not change the court's political ideology, at least not in the short term. Regardless of the nominee, Republicans will continue to benefit from a hyper-conservative court as a result of having packed the court during the Trump administration. "The opportunity for Republicans lies in two areas. First, GOP senators have a chance to prove that they mean what they've said about diversifying the federal bench. Second, provides them a chance to improve the chances that ordinary Americans will perceive upcoming Supreme Court decisions as legitimate." "POLITICO PRO Q&A: Kim Hunter Reed, higher education commissioner for Louisiana," by POLITICO's Jessica Calefati: "Louisiana Commissioner of Higher Education Kim Hunter Reed has few peers who look like her. She is a Black woman in a field still dominated by white men, and she's the only woman serving as a top state higher education official who has held such a role in more than one place. ... "In an interview with POLITICO Pro, Hunter Reed discussed her vision ... her thoughts on free community college and her ascent from a small town in Louisiana to the halls of power. ... POLITICO: "What challenges did you face as a woman, and as a Black woman, working in a space that is still heavily dominated by old white men?" Reed: "It's always challenging and interesting when you are the 'only' at the table. When I worked for the commissioner of higher education, he would turn to me in a room of men and say, "What do you think? What are your ideas?" That elevated my voice and gave me more confidence that I was where I needed to be and would be heard. I also got to work with two strong female leaders when I was coming up, and they nurtured, mentored and talked to me about expectations. "We talk about how kids can't be what they can't see. And I got to see women, minority women, at the table leading discussions and commanding respect. And I learned a lot, from all of them, about the importance of being a student of this work, always learning, always reading, always listening." Number of the Week Read more here. MUST READS AP Photo/Brynn Anderson " Grief Over Time," by Derecka Purnell for The Cut: "Three days before our conversation, [Sybrina Fulton] endured another Christmas without her son Trayvon Martin . It is her family's favorite time of year. They gather, binge films, and talk trash. "When Trayvon was still alive, Fulton filled the whole house with ornaments and tinsel. Now she decorates a single room. … "I ask Fulton, 'What makes you angry about what's happened in the past ten years?' "Journalists poke and prod Black parents about whether they fear for their Black child in this country or forgive their child's murderers. (Nobody ever asks white parents if they fear their child will inherit the power to take a Black life.) As time slinks, the poking and prodding slides from questions about forgiveness and fear to questions about healing and hope. But a Black family's rage can reveal criticisms that their fear and hope cannot. "'What makes me angry is the fact that you have so many people that want to do something, but they don't. You got so many people who comment and who post and who are talking heads on the news, and what are they doing? Nothing.' Fulton's eyebrows arch inward, and she raises her pitch and pace. 'You have to be active. You have to participate. You have to get involved. Those are the types of things that make me angry. You can't just share a story on social media and figure, Okay, I did my part, you know?" "Hollywood Discovers the Middle-Aged Woman," by Helen Lewis for the Atlantic: "In 2012, two economists from Clemson University analyzed the gender balance of American films from 1920 to 2011 and offered a more wonkish take on the phenomenon. Overall, they found that men accounted for two-thirds of all roles in mainstream movies. For starring roles, however, age is everything. At 20, women play four-fifths of leads: Hollywood is very interested in them at their nubile prime. Fast-forward to 40, and that statistic is reversed. Men utterly dominate the juiciest parts. The male-female gender split then hovers around 80–20 until, well, death. "For the few women actors who come out the other side of the dry decade, the rewards can be mixed. No longer able to portray ingenues , brides-to-be, or manic pixie dream girls, or be the Avengers' diversity hire (sorry, Black Widow), older actresses graduate into the other popular category open to women: hags and harpies. Meryl Streep once described the parts she was offered after 50 as women who were "gorgons or dragons or in some way grotesque." Sure enough, Thompson's late-career roles also include the Baroness in Cruella, Goneril in a TV-movie version of King Lear, and Miss Trunchbull in the upcoming musical adaptation of Matilda. Monsters, one and all. "But biology, it turns out, needn't be destiny. A new generation of actresses has discovered an answer to the dry decade, and is showing the rest of us what we've been missing—stories that capture the fullness of women's lives." "Why These Women Are Determined to Clear Cuomo's Name," by Nicholas Fandos and Dana Rubinstein for the New York Times: "Five months after Mr. Cuomo left office in disgrace, a vocal band of ardent supporters armed with checkbooks and active social media accounts — most of them women — is carrying on a battle most New Yorkers have long since tuned out. "Of the more than 230 people who collectively donated $31,000 to Mr. Cuomo's campaign since his resignation announcement, three out of every four appeared to be women, according to a New York Times analysis of public campaign filings. "Online, they have banded together in Facebook groups and on Twitter in a tireless campaign to boost his legal team and muddy his accusers. Some hold regular Zoom meetings; others sell Cuomo-related merchandise (T-shirts emblazoned with the word 'allegedly,' among other items). "Many were impressed by Mr. Cuomo's daily briefings in the early days of the coronavirus, and by the way he calmly filled a leadership void coming from Washington. Now they have come to his defense, driven by a sense of admiration, injustice and broader concerns that the #MeToo movement has gone too far." Quote of the Week A 1969 speech by Shirley Chisholm was recently unearthed and transcribed for the first time. Read more here.   Sponsored by Business Leader members of Women Rule: The Exchange: COVID-19 has upended the American workplace — and it continues to shine a light on what isn't working — particularly for women. But within every crisis, there is opportunity. Women Rule: The Exchange brings together leading women in business each quarter to confront these challenges and help find solutions to today's most pressing issues at the intersection of gender, industry and policy. Most recently, this included an examination of the future of America's working women. In this inaugural edition of 'view from The Exchange,' we sat down with a few of these leaders to continue the conversation and get their perspectives on some of the critical topics — diversity and inclusion, equal pay, mental health and family-friendly policies — that are driving this debate and will make or break the future of work for women.   Transitions Kristi Craig will be the first chief investment officer at the National Geographic Society. She currently serves as director of private investments at Georgetown University. … Taylor Lorenz is joining WaPo as a tech columnist. She previously was a tech reporter at the NYT. WaPo announcement . … Emily Kopp is joining U.S. Right to Know as a reporter. She previously led Covid-19 coverage at CQ Roll Call, and is a Kaiser Health News and POLITICO alum. (h/t Playbook) … The House Agriculture Committee announced new staff roles: Emily Pliscott, previously a dairy policy assistant, will become a policy analyst. And Victoria Maloch was named deputy communications director for the committee. Maloch is currently a legislative assistant for two subcommittees. (h/t Morning Ag) …. Angie Buckingham Melton is now VP at McAllister & Quinn. She previously was a lobbyist and strategic consultant at the Margolin Group. …Sadie Thorman will be comms director for Rep. Greg Steube (R-Fla.). She currently is press secretary for Rep. Tom Rice (R-S.C.). (h/t Playbook) Cami Connor has joined the government operations team at Boeing as a defense, space and security analyst. She most recently was an associate at Targeted Victory and is a Trump White House alum. … TechNet has named Ashley Sutton as executive director for Washington and the Northwest. She previously owned the Washington public affairs shop Agile Public Affairs. … Olivia Troye is joining the Renew America Movement as chief strategy officer. She's founder of the Troye Group and a Mike Pence alum. (h/t Morning Influence)   Follow us on Twitter Katelyn Fossett @KatelynFossett   Follow us

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