Their Baby, Their Choice.

On January 15th, the state of Virginia approved the Equal Rights Amendment (ERA): a proposed amendment to the United States Constitution, which was first approved by Congress all the way back in 1972. Democrats trumpeted this achievement, suggesting that because Virginia was the 38th state to have ratified the Amendment, it is now part of the Constitution.

While at first glance, the ratification of the ERA feels like a big win for Democrats (and first-through-fourth wave feminists), its establishment has the potential to do more for Republicans and those who stand for egalitarian values.

They're wrong, of course. Virginia's ratification does not mean the ERA is on its way.

As the Heritage Foundation reports, “Congress proposed the ERA and sent it to the states on March 22, 1972, with a seven-year ratification deadline. In 1978, before that deadline passed, Congress extended it to June 30, 1982. When that deadline passed with fewer than the constitutionally required number of state ratifications, the 1972 ERA expired and was no longer pending before the states.” To overcome the hurdles to ratification, Congress, the courts, and the American people would have to act to take advantage of the ERA's recent momentum.

But should they?

The answer might surprise you. While at first glance, the ratification of the ERA feels like a big win for Democrats (and first-through-fourth wave feminists), its establishment has the potential to do more for Republicans and those who stand for egalitarian values. If the ERA is passed, it would mean that under the law, women would be considered ‘equal’ to men. But it would also mean men would be considered ‘equal’ to women—laying the groundwork to challenge many of the special privileges afforded to women in our so-called equal society.

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UNDERSTANDING THE HISTORY OF THE ERA

Virginia approved the version of the ERA approved by Congress in 1972, which 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. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."

In the 1970s, conservative activist Phyllis Schlafly led the charge against the ERA, arguing that the amendment would hurt women. Schlafly organized the STOP ERA campaign (Stop Taking Our Privileges) and believed that the ERA would take away benefits women had as "dependent wives" benefits under Social Security, the exemption from Selective Service, and separate restrooms for males and females. Schlafly also feared that it would lead to the reversal of gender roles, tax-payer funded abortions, and same-sex marriage.

The Democrats fought back against that narrative, arguing that the ERA was needed for women to “finally be equal.” They felt Schlafly's movement would keep them in the role of "the second sex” and limit their freedom of choice and advancement in the workplace. (It’s interesting to note that despite the ERA failing to ratify, many of the potential policies STOP was worried about became law, anyway!)

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WHAT MEN STAND TO GAIN FROM AN EQUAL RIGHTS AMENDMENT

So, in 2020, what would women substantively gain from passing the ERA? Not too much. It wouldn’t help those trying to end the “gender pay gap”: there are also already laws in place that allow women to sue for gender discrimination by their employer. Outside of that, it’s not clear where, exactly, feminist groups would be able to use the ERA to enact policy change.

But the real prize which the Democrats might unknowingly hand over to the Republicans with the passage of the ERA is this: Roe v. Wade could be challenged.

Although the gains for women appear to be largely symbolic, the potential substantive benefits for men are considerable.

For one thing, the rampant anti-male bias in family court could be questioned. As of right now, the court sides in the mother’s favor in the vast majority of cases, often leaving fathers with the short end of the stick. Due to the Tender Years Doctrine (TYD), courts believed that children under the age of 13 were more likely to be dependent on their mother. In the 1970s, the TYD fell out of favor, replaced by the “Best Interests Doctrine,” but the stereotype of the mother being the primary caregiver has persisted. For decades, fathers have been discriminated against and denied a relationship with their children.

A similar gender bias as become common form in higher education; through the ERA, the special treatment given to females (scholarships, resources, and programs to help females rise to the top) could be brought into question. Women make up 57% of college students, so it is unclear why we are not urging more boys to attend college. With the rise in automation, many male-dominated jobs that require less education are disappearing. We saw this in last month’s US jobs report, where women have become the majority of our workforce.

How our society deals with domestic violence funding could also be scrutinized. Today, the government disproportionately funds programs for women, although men make up a shockingly large number of domestic violence victims. With an established ERA, Policymakers can also reconsider the decision-making criteria applied to men and the long-practiced sentencing bias they face. Today, men face longer prison sentences compared to women who commit the same crime. Research shows that men receive 63% longer sentences than women do, and women are twice as likely to avoid incarceration if convicted.

But the real prize which the Democrats might unknowingly hand over to the Republicans with the passage of the ERA is this: Roe v. Wade could be challenged.

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ROE V. WADE UNDER THE ERA

The ERA states that men and women are equal under the law. Roe v. Wade falls under the right to privacy provided by the due process clause of the Fourteenth Amendment. In 1973, the US Supreme Court case, Roe v. Wade, affirmed that access to safe and legal abortion is a constitutional right. It was said that the due process clause of the Fourteenth Amendment provides a fundamental "right to privacy" that protects a pregnant woman's liberty to choose whether or not to have an abortion, and established precedent.

The precedent could become 'it’s no longer a woman’s choice—it’s their baby, their choice,' as 'equals.'

With the ratification of the Equal Rights Amendment, a man could claim that he does not want his partner to have an abortion when the woman wants an abortion; he could technically claim that the pregnancy is 50% his, and, having equal rights, he has a say in what happens.

Even if the Fourteenth Amendment still favored women, the argument could then evolve to asking: “what is more important?” Is it the woman’s right to privacy or the man’s equal human rights under the constitution? With conservative judges, all the way up to the Supreme Court, the chances of a ruling favorable to men are high—giving conservatives the case they’ve been waiting for after relentlessly trying to find a way to overturn Roe v. Wade. The precedent could become 'it’s no longer a woman’s choice—it’s their baby, their choice,' as 'equals.'

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EQUAL TREATMENT FOR ALL

I, personally, am in favor of ratifying the ERA, and have been presenting my argument for it in a bipartisan way on Capitol Hill for two years. But my motivation differs from Democrats. I am a children’s book author on a mission to encourage both girls and boys; I currently serve on a bipartisan coalition to create a White House Council on Boys and Men.

To end the gender equality debate (which continues to create a social rift between sexes) and strive for true equal treatment for all, the ERA should be passed.

To end the gender equality debate (which continues to create a social rift between sexes) and strive for true equal treatment for all, the ERA should be passed. We are only one of two countries who have not guaranteed equality of the sexes. It is time to get this done so we can actually address pressing issues, like how we are leaving our boys behind in society, the peril of young males’ decline and the destruction of the family.

Ratifying the ERA would be a big win for conservatives, and they should rejoice over the news  on it is well on its way. We should support ratification. Democrats have always claimed the big, bad Republican men were trying to take away the rights of women—but maybe they’ve actually been the ones (knowingly or otherwise) protecting women’s special privileges the entire time. If we genuinely want fair treatment of the sexes and equal opportunity for women and men in 2020, the ERA is the way to go.