Nevada’s 2022 Equality of Rights Amendment and Its Implications for the Federal Equal Rights Amendment

Nevada has led the fight for expansive gender equality at a Constitutional level since the state ratified the federal Equal Rights Amendment in 2017. The federal Equal Rights Amendment (ERA) provides a legal guarantee against sex discrimination. It was introduced in the 1920s and gained widespread support in the 1970s, but it failed to reach the minimum number of states needed for ratification. Nevada’s 2017 ratification sparked the present national movement for the publication of the ERA in the U.S. Constitution. Some skeptics of the ERA question its contemporary relevance, citing Supreme Court precedents that have found equal protection for the sexes under the 14th Amendment and the fact that the ERA will soon be a century old. Justice Ruth Bader Ginsburg even “wished for a ‘new beginning’ for the Amendment” despite her support.¹ Even without a federal ERA, states across the nation have implemented their own equal rights protections. In November of 2022, Nevada responded to these calls for new equal rights legislation by passing the most inclusive equal rights amendment to their state constitution in United States history. The “Equality of Rights” amendment includes legal protections for racial, gender, and sexual orientation equality, including protection from workplace pregnancy discrimination and pay disparities.² Nevada’s state ERA provides the most inclusive protections to date and demonstrates the possibilities and power of a modern and inclusive federal Equal Rights Amendment.

A brief overview of the federal ERA is necessary to understand the state of the fight today. The amendment was proposed in the 1920s as a remedy to sex discrimination. It simply states that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”³ The goal of the federal ERA was to correct the omission of women from the U.S. Constitution and create a clear Constitutional right to gender equality that would invalidate discriminatory laws. In order to be added as a Constitutional amendment, the ERA needed to be passed by two thirds of Congress and ratified by three fourths (38) of the states. The ERA movement of the early 1970s, propelled by feminist advocacy, was originally quite successful. The ERA passed the House in 1971 and passed the Senate the next year.⁴ Within a year of it passing through Congress, 30 states ratified it.⁵ In response to this success, however, an anti-ERA campaign emerged from conservative religious traditions. Led by Phyllis Schlafly, an attorney and activist, the campaign argued that ERA would destroy traditional gender roles that many women cherished and eliminate protections for women.⁶ The Stop ERA campaign, as it was called, derailed the passage of the amendment. The ERA failed to meet the necessary 38 state threshold by the 1982 deadline set by Congress.⁷ In the decades since, however, a national movement for the ratification of the federal ERA has grown as individual states such as Nevada have implemented their own equal rights protections.

Nevada legislators and advocates have been fighting for the state Equality of Rights Amendment since 2019. The state’s Senate Joint Resolution 8 (2019) first proposed the constitutional amendment and immediately received bipartisan support. In 2021, a wave of women won seats in the state government, representing 60% of the legislature.⁸ This wave of women representatives championed the Equality of Rights Amendment. One of the key legislators of the Nevada state ERA is State Senator Pat Spearman, who cosponsored the amendment and is also an advocate for the federal ERA. Bipartisan supporters viewed the state amendment as a critical step for gender equality and a guaranteed protection against gender discrimination. Opposition groups’ arguments were founded on the fear that the passage of a state ERA would mandate taxpayers to fund abortions through Medicaid and allow transgender men to play on women’s sports teams. A grassroots campaign followed this debate to gain public support for the amendment, led by a coalition of feminist and equal rights groups including Nevada NOW, Planned Parenthood, Silver State Equality, Battle Born Progress, Progressive Leadership Alliance of Nevada, and Generation Ratify. These groups succeeded in putting the Nevada state ERA as Question 1 on the November 2022 ballot, where it was approved with a substantial 58% of the vote.⁹ Kate Kelly, an organizer for the Nevada ERA campaign, called the passage of the amendment “revolutionary.”¹⁰

The Nevada state constitutional amendment is a unique and comprehensive law. It declares that:

“Equality of rights under the law shall not be denied or abridged by this State or any of its political subdivisions on account of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin.”¹¹

The amendment focused not only on gender equality but also racial equality and disability rights. The Nevada Current reported that “no other state has explicitly prohibited discrimination on the basis of sexual orientation, gender identity or gender expression,” as well.¹² The amendment is meant to close loopholes in federal equal rights protections and provide a clear standard under which intersectional issues such as pregnancy discrimination and equal pay can be addressed.

Furthermore, in a post-Roe world, the Nevada state ERA has attracted interest for its implications for abortion rights in the state. Nevada currently bans abortion after 24 weeks of pregnancy, with exceptions for rape, incest, and the life of the mother.¹³ The state does not allow Medicaid funding to be used for abortion care, with the same three exceptions. As mentioned, an argument against Nevada’s state ERA is that it would allow all abortions to be covered by Medicaid. There is precedent for the expansion of abortion coverage due to a state ERA. In 1999, the New Mexico Supreme Court ruled funding for abortions through Medicaid could not be limited to a few exceptions under their state ERA. While it is not guaranteed that Nevada’s state ERA will have the same outcome given different state circumstances, there is a possibility that the amendment could expand abortion coverage for low-income pregnant people.

Overall, Nevada’s newly implemented expansive equal rights protection law can inform the national push for the federal ERA. As of 2021, 25 states had equal rights provisions as articles of amendments. Like Nevada, many of these laws are not exclusively about sex discrimination, but cover other forms of discrimination as well. Thirty-eight states have also now ratified the federal Equal Rights Amendment from the 1920s and 70s. These ratifications have reached the threshold Constitutional legitimacy multiple decades after the deadline and reignited a push for the addition of the amendment. ERA advocates today see adding a Constitutional protection for gender equality as an broad and consistent way to end pervasive discrimination rather than incremental victories through the courts. Julie Suk, a law professor at Fordham University School of Law, writes that “an explicit constitutional provision carrie[s] tremendous symbolic power, consciously affirming the equal status of those who were abused for so long.”¹⁴ After Nevada sparked an interest in the federal ERA through their 2017 ratification, Illinois and Virginia ratified it in 2018 and 2020, respectively, though not without controversy. In Illinois, ratification barely passed because two progressive Black female legislators were concerned that the ERA did not sufficiently address Black women’s issues and their intersectional identities.¹⁵ Virginia’s ratification, like Nevada’s, was also the product of increased female representation in the state legislature. In 2020, the Virginia legislature was one-third women, the highest proportion of women in the state’s history.¹⁶ It was this body, under Democratic leadership, that prioritized making Virginia the 38th and final state needed to ratify the ERA.

The present movement for the ratification of the federal ERA echoes some of the concerns and hopes for the ERA from the 70s movement. A key figure in shaping the ERA in the 70s, Pauli Murray, was both a supporter and critic of the amendment. Murray, a brilliant civil rights activist and lawyer, pushed for the ERA in the 1970s from the perspective of Black women, believing that Black women had the most to gain from the federal ERA because they are marginalized by both race and gender in a way white women are not, and thus had more rights that needed protecting. She had the same concerns about overlooking Black women’s intersectional experiences that the Illinois lawmakers have today, and she addressed those questions by positing a theory of an expansive implementation of the ERA that could alleviate the oppressions of what she termed “Jane Crow.”¹⁷ Murray had an “ambitious vision of equal power for women” and saw the lack of an ERA as accepting of a “dangerous imbalance” of power where half of the US population is excluded from levers of power because of their gender.¹⁸ By arguing for an ERA that not only asserted equal rights but equal power, Murray’s vision placed the future of the legal system in the hands of women. Women would not only be protected from sex discrimination under Murray’s suggested ERA interpretation; they would inhabit positions of power and make decisions about how to prevent and address sex discrimination in all its forms.

Supporters of the federal ERA today recognize its shortcomings. Many share the worries of the Illinois legislators about the ERA’s failure to address the intersectional experiences of women today. Professor Suk argues that current debates over the meaning of the federal ERA, from Congress to state legislatures, are exactly the forum to re-interpret and expand the impact of the federal ERA for modern day. She wrote that the debates around the federal ERA in Illinois reflect how “late ratifications have incorporated objections to contribute to a race-conscious meaning of the ERA.”¹⁹ The state equal rights protections, additionally, carry weight for setting a standard of what equal protection law should look like. Nevada’s comprehensive Equality of Rights Amendment is so critical to understanding the future of the federal ERA because it puts the original meaning of the ERA into a 21st century context and provides protections for not just women, but racial minorities, immigrants, and people with disabilities. Under the Nevada-amendment-inspired federal ERA, Congress could more readily address the “disadvantages that women are now facing because of the COVID-19 pandemic, with its effects on women's employment, violence against women, childcare, and reproductive justice” because these issues “require public policy solutions that the ERA can anchor.”²⁰ The state law is intersectional in a way the federal ERA should take notes from.

Despite progress in some states, however, multiple other states have moved to rescind their support of the federal ERA, including Nebraska, Tennessee, Idaho, Kentucky, South Dakota, and most recently, Virginia. In February 2022, after Republican Glenn Youngkin took the Governor’s Mansion, the newly appointed Virginia Attorney General Jason Miyares pulled the state out of a legal campaign for the federal ERA. Virginia had previously been a member of the ERA-supporting party of a lawsuit initiated by the former Democratic Attorney General to get the Archivist of the United States to acknowledge the ratifications of Nevada, Illinois, and Virginia and publish the ERA in the Constitution. Recissions by multiple states have complicated the path forward for the federal ERA.

According to Professor Suk, Congress has the authority to remove the 1982 ERA deadline. Currently, Senate Joint Resolution 6, sponsored by Senators Ben Cardin (D) and Lisa Murkowski (R) would do just that and ignore the rescissions of states, allowing the ERA to be added to the Constitution. In March 2021, the House passed their version of this resolution. Professor Suk believes that the legislative process to ratify the federal ERA will itself help to update the meaning of the ERA in current time. Until Congress acts, however, the power resides with the President Trump-appointed Archivist of the U.S., who refuses to certify Virginia in line with a Trump Administration policy that claims that the Congressional deadline cannot be changed and that the ERA is dead.

Nevertheless, the fight for a comprehensive federal ERA, based on the tremendously successful Equality of Rights Amendment in Nevada, continues. The Nevada amendment’s protections for intersectional experiences makes it a model law for a possible modern federal ERA. Congress, and particularly Congressional women, must come together to debate the federal ERA and strike down the deadline. A comprehensive federal ERA that takes into account existing state laws and testimony from legislators will provide strong legal protections and empowerment for all women.

References

1. Julie Suk, “A Dangerous Imbalance: Pauli Murray’s Equal Rights Amendment and the Path to Equal Power,” Virginia Law Review 107 (January 2021): 25. ↩

2. Camalot Todd, “With Question 1, Nevada Passes Most Inclusive States Equal Rights Amendment in Nation,” Nevada Current (blog), November 10, 2022, https://www.nevadacurrent.com/2022/11/10/with-question-1-nevada-passes-most-inclusive-states-equal-rights-amendment-in-nation/. ↩

3. “Nevada Question 1, Equality of Rights Amendment (2022),” Ballotpedia, accessed December 3, 2022, https://ballotpedia.org/Nevada_Question_1,_Equality_of_Rights_Amendment_(2022). ↩

4. Alex Cohen and Wilfred Codrington III, “The Equal Rights Amendment Explained | Brennan Center for Justice,” Brennan Center, January 23, 2020, https://www.brennancenter.org/our-work/research-reports/equal-rights-amendment-explained. ↩

5. Ibid. ↩

6. Ibid. ↩

7. Ibid. ↩

8. Carrie N. Baker, “Nevadans to Vote on ‘Revolutionary’ ERA: ‘Equal Rights Crosses Party Lines,’” Ms. Magazine (blog), October 28, 2022, https://msmagazine.com/2022/10/28/equal-rights-amendment-nevada-election-2022/. ↩

9. “Nevada Question 1, Equality of Rights Amendment (2022),” Ballotpedia, accessed December 3, 2022. ↩

10. Baker, “Nevadans to Vote on ‘Revolutionary’ ERA.” ↩

11. Nicole Cannizzaro, “Proposing to Amend the Nevada Constitution to Guarantee Equal Rights,” Pub. L. No. SJR8 (2019). ↩

12. Todd, “With Question 1, Nevada Passes Most Inclusive States Equal Rights Amendment in Nation.” ↩

13. “Interactive Map: US Abortion Policies and Access After Roe,” Guttmacher Institute, accessed December 3, 2022, https://states.guttmacher.org/policies/. ↩

14. Suk, “A Dangerous Imbalance: Pauli Murray’s Equal Rights Amendment and the Path to Equal Power,” 13. ↩

15. Ibid. ↩

16. Ibid. ↩

17. Ibid, 12. ↩

18. Ibid 14. ↩

19. Ibid 10. ↩

20. Julie Suk, “Making the Equal Rights Amendment That Is Needed in the Twenty-First Century,” Columbia Journal of Gender and Law 43, no. 58 (2022): 58–64. ↩