[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
THE EQUAL RIGHTS AMENDMENT:
ACHIEVING CONSTITUTIONAL
EQUALITY FOR ALL
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
OVERSIGHT AND REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 21, 2021
__________
Serial No. 117-48
__________
Printed for the use of the Committee on Oversight and Reform
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available on: govinfo.gov,
oversight.house.gov or
docs.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
46-024 PDF WASHINGTON : 2021
-----------------------------------------------------------------------------------
COMMITTEE ON OVERSIGHT AND REFORM
CAROLYN B. MALONEY, New York, Chairwoman
Eleanor Holmes Norton, District of James Comer, Kentucky, Ranking
Columbia Minority Member
Stephen F. Lynch, Massachusetts Jim Jordan, Ohio
Jim Cooper, Tennessee Paul A. Gosar, Arizona
Gerald E. Connolly, Virginia Virginia Foxx, North Carolina
Raja Krishnamoorthi, Illinois Jody B. Hice, Georgia
Jamie Raskin, Maryland Glenn Grothman, Wisconsin
Ro Khanna, California Michael Cloud, Texas
Kweisi Mfume, Maryland Bob Gibbs, Ohio
Alexandria Ocasio-Cortez, New York Clay Higgins, Louisiana
Rashida Tlaib, Michigan Ralph Norman, South Carolina
Katie Porter, California Pete Sessions, Texas
Cori Bush, Missouri Fred Keller, Pennsylvania
Danny K. Davis, Illinois Andy Biggs, Arizona
Debbie Wasserman Schultz, Florida Andrew Clyde, Georgia
Peter Welch, Vermont Nancy Mace, South Carolina
Henry C. ``Hank'' Johnson, Jr., Scott Franklin, Florida
Georgia Jake LaTurner, Kansas
John P. Sarbanes, Maryland Pat Fallon, Texas
Jackie Speier, California Yvette Herrell, New Mexico
Robin L. Kelly, Illinois Byron Donalds, Florida
Brenda L. Lawrence, Michigan
Mark DeSaulnier, California
Jimmy Gomez, California
Ayanna Pressley, Massachusetts
Mike Quigley, Illinois
Russ Anello, Staff Director
Kate Kelly, Counsel
Elisa LaNier, Chief Clerk and Director of Operations
Contact Number: 202-225-5051
Mark Marin, Minority Staff Director
------
C O N T E N T S
----------
Page
Hearing held on October 21, 2021................................. 1
Witnesses
The Honorable Jennifer McClellan, Virginia State Senator
Oral Statement............................................... 7
Ms. Alyssa, Milano, Actor, ERA Advocate
Oral Statement............................................... 8
Ms. Carol Jenkins, President, ERA Coalition
Oral Statement............................................... 10
Ms. Inez Feltscher Stepman (Minority Witness), Senior Policy
Analyst, Independent Women's Forum
Oral Statement............................................... 12
Ms. Eleanor Smeal, President, Feminist Majority
Oral Statement............................................... 14
Ms. Bamby Salcedo, President TransLatin@ Coalition, Board Member,
ERA Coalition
Oral Statement............................................... 16
Ms. Victoria Nourse, Professor of Law, Georgetown University Law
Center
Oral Statement............................................... 18
Opening statements and the prepared statements for the witnesses
are available in the U.S. House of Representatives Repository
at: docs.house.gov.
INDEX OF DOCUMENTS
----------
The documents entered into the record during this hearing, and
Questions for the Record (QFR's) for this hearing are listed
below.
* Examples of sex discrimination; submitted by Chairwoman
Maloney.
* Comments by Justice Ginsberg regarding 1982 deadline;
submitted by Rep. Comer.
* Letter by Students of Life; submitted by Rep. Keller.
* Survey of female support for ERA; submitted by Rep. Wasserman
Schultz.
* QFRs: to Ms. Amby Salcedo; submitted by Chairwoman Maloney.
The documents listed below are available at: docs.house.gov.
THE EQUAL RIGHTS AMENDMENT:
ACHIEVING CONSTITUTIONAL
EQUALITY FOR ALL
----------
Thursday, October 21, 2021
House of Representatives,
Committee on Oversight and Reform,
Washington, D.C.
The committee met, pursuant to notice, at 10:07 a.m., in
room 2154, Rayburn House Office Building, and via Zoom. Hon.
Carolyn Maloney [chairwoman of the committee] presiding.
Present: Representatives Maloney, Norton, Lynch, Connolly,
Krishnamoorthi, Raskin, Khanna, Porter, Bush, Wasserman
Schultz, Welch, Johnson, Sarbanes, Speier, Kelly, Lawrence,
DeSaulnier, Gomez, Pressley, Comer, Grothman, Cloud, Gibbs,
Higgins, Norman, Keller, Clyde, Franklin, Fallon, and Herrell.
Also present: Representative Spanberger.
Chairwoman Maloney. [Presiding.] The committee will come to
order.
Without objection, the chair is authorized to declare a
recess of the committee at any time.
I now recognize myself for an opening statement.
Welcome to everyone. As the first woman to chair the
Committee on Oversight, I am particularly proud to convene this
hearing on what I believe is one of the most important things
we can do to ensure equality for women in our country: finally
putting women and the Equal Rights Amendment in the
Constitution. Discrimination against women is a persistent
problem, yet our country's fundamental document does not
guarantee equality. That is why I have introduced the ERA 13
times during my career in Congress and why I am so committed to
seeing this amendment adopted as part of our Constitution now.
The Equal Rights Amendment was written more than 100 years
ago by the legendary suffragist Alice Paul, who I am proud to
say was a relative of my late husband, Cliff Maloney. After
decades of effort, the ERA finally passed the House in October
1971, 50 years ago this month, in a strong bipartisan vote. It
passed the Senate overwhelmingly the following year. The
preamble to the amendment included a seven-year time limit,
and, in 1979, Congress voted to extend the limit by another
three years. By 1982, the ERA had been ratified by 35 of the
necessary 38 states, then momentum behind the amendment
stalled. But that all changed in 2017 when the women's marches
and the Me Too movement reminded us all that we are still a
very long way from equality.
In 2017, Nevada voted to ratify, Illinois followed in 2018,
and Virginia in 2020. Thirty-eight state legislatures have
voted to ratify the ERA, meeting the constitutional
requirement, but the ERA still does not appear in the
Constitution, and this has to change. Federal law directs the
archivist of the U.S. to certify and publish amendments that
have met the requirements laid out in Article V of the
Constitution. This is purely a ministerial duty, which should
be done automatically. But under President Trump, the
Department of Justice issued an opinion advising the archivist
not to certify the ERA. Today I am releasing a letter from
preeminent legal scholars stating that this Trump-era legal
opinion is legally erroneous and should be withdrawn. These
scholars also make clear that the time limit in the preamble to
the ERA is not an obstacle to ratifying the amendment. This
time limit was not included in the amendment itself, and there
is no time limit on equality.
I strongly agree with the scholars' assessment that the
time limit is likely non-binding and that Congress clearly has
the authority to extend or eliminate time limits if necessary.
So today I call on President Biden, who is a true champion of
women, to withdraw this flawed legal opinion and allow the
archivist to certify the ERA without delay. I also strongly
support the legislation led by my colleague and friend,
Congresswoman Speier, that the House passed to eliminate the
time limit from the ERA. This would remove even the shadow of a
doubt about the ERA's validity. I urge the Senate to take up
this bill without further delay.
After 100 years, women cannot wait any longer for full
constitutional equality. The ERA is not merely a symbol. It
will make a real difference in the lives of women and people
who face discrimination, sexual violence, and unequal pay. The
pay gap between men and women has persisted for decades with
the average woman being paid 80 cents for every dollar paid to
men. For women of color, the gap is even wider. In order to
make the same income as a man earned last year, a Latina woman
in this country has to work an extra 10 months until today,
October 21. That is shameful, and it shows that the current
legal standards are not adequate.
In 1994, Congress passed the historic Violence Against
Women Act, authored by then-Senator Joe Biden, which included a
right for victims of sexual violence to sue their attackers.
But when a young woman named Christy Brzonkala tried to sue her
rapist where there was no dispute--it was a gang rape; one even
confessed--the Supreme Court struck down that part of the law
as unconstitutional. More recently, a Federal court in Michigan
overturned a law banning female genital mutilation, which is an
internationally recognized human rights violation. The judge
found it was unconstitutional to ban female genital mutilation.
What a disgrace for this to happen in the United States. With
the ERA, Americans who go to court to challenge discrimination
will have a fighting chance.
Today equal rights can be too easily rolled back depending
on the ideological leanings of Supreme Court justices, but
constitutional amendments are permanent. We can't always
control who is on the bench, but we can change the document
they are tasked with interpreting so that it better reflects
the equality that all Americans deserve. This committee will
continue to work to put the ERA in the Constitution.
I am very pleased now to recognize Congresswoman Jackie
Speier, the sponsor of H.R. Res. 17 and ERA champion, for a
brief opening statement.
Ms. Speier. Thank you, Chairwoman Maloney, for holding the
first full committee hearing on the Equal Rights Amendment in
over 40 years. I know that when the ERA is finally added to our
Constitution, it will be in no small part thanks to your
steadfast commitment and leadership and the hard work of so
many the sheroes who are here to testify today.
We are here today to acknowledge a sad truth. Our country's
founding was based exclusively on excluding women in the
Constitution. It was intentional. We were deprived of basic
rights to vote, prevented from being hired for most jobs, and
from owning property. To this day we are paid less for our
work, violated with impunity, and discriminated against simply
for being who we are. The ERA was first introduced in Congress
in 1923. That is 98 years ago. Yes, we are here today because
nearly a century later, the Constitution still does not
guarantee gender equality. We are here today because of 193
United Nation countries, 165 of them have an equal rights
amendment, but the United States does not. Countries that have
looked to us to model their constitutions have recognized the
equality of women and men, yet we fail to do the same.
We are here today because, despite the tremendous progress
women have made, we are still deeply unequal in society. In
subtle and not so subtle ways, women are subject to
discrimination, a reality denied by many of my colleagues
across the aisle who insist we don't need the ERA because women
are already equal. Well, to them I ask, what do you say to
Christy Brzonkala, who was raped by two football players at
Virginia Tech, and the Court that said that, in fact, Congress
didn't have the power to pass that part of VAWA? That is why
Section 2 of the ERA is so important. Or how about Tracy
Rexroat, whose starting salary at the Arizona Department of
Education was $17,000 lower than her male counterpart? They had
equal experience, equal education, but she was paid $17,000
less because of her salary history. A Federal district court
ruled that unequal starting salaries don't violate the Equal
Pay Amendment because salary history is an acceptable business
reason for unequal pay.
Or Jessica Lenahan, whose estranged husband kidnapped and
murdered their three young daughters after police refused to
enforce a restraining order. The Supreme Court ruled that
Lenahan had no constitutionally protected right to enforcement
of her restraining order. Or how about Peggy Young, who was put
on unpaid leave without health insurance by UPS when she got
pregnant? The Supreme Court set such a stringent standard that
in two-thirds of the cases after Young, courts have ruled
against pregnant workers seeking reasonable accommodation. If
we certify the ERA, these cases would have very different
outcomes.
The ERA will create stronger legal recourse against sex
discrimination, empower Congress to better enforce and enact
laws protecting women, and confirm the rightful place of gender
equality in the Constitution, not subject to the whims Congress
or the White House. It will also ensure that the Supreme Court
uses the most demanding standard of review in sex
discrimination cases the way it already does for race
discrimination. And despite the partisan rhetoric, I believe in
my heart that most of my Republican colleagues know that this
is not only the recognition of our inalienable rights, but that
it is the right thing to do. That is why the Department of
Justice must rescind the Trump Administration's legally flawed
and non-binding legal memo on the ERA, and the archivist must
immediately certify the ERA as the 28th amendment because 38
states have already ratified the amendment as the Constitution
requires. I am also proud to champion H.J. Res. 17, which
passed the House earlier this year with bipartisan support, to
remove any shadow of doubt that the ERA is, in fact, our 28th
amendment, and I urge the Senate to act swiftly.
I know that all of us will keep fighting until we achieve
the promise of equal justice under law. Mark my words: we will
get this done. We must get this done. Our daughters and
granddaughters demand it. And with that, I yield back.
Chairwoman Maloney. I will now recognize the co-chair of
the Women's Caucus, a true leader on women's equality,
Congresswoman Brenda Lawrence, for her opening statement.
Mrs. Lawrence. Thank you so much, Chairwoman Maloney, for
your leadership, relentless leadership, in working to advance
the rights and freedoms of women and girls both in the United
States and abroad.
The urgent need for the Equal Rights Amendment is very
clear. If I can quote my colleague, who stated--Jim Clyburn--
that ``America is only great when its greatness is shared
equally for everyone in America.'' Since our country's
founding, women have been intentionally left out of the
Constitution. We have been treated as second-class citizens at
one time in our history and had to abide by laws that gave us
no voice or representation. And for those who still question
the need for the ERA, take a look at the gender wage gap. Take
a look at pregnancy discrimination. Take a look at the loss of
reproductive freedoms.
As the co-chair of the Women's Caucus, I introduced a
resolution that will require our Declaration of Independence to
state that all men and women are created equal. At minimum, can
we as a country state that we are equal? We need the ERA so
that women can achieve our full potential. We need the ERA to
ensure that the rights of women and girls will not be rolled
back by the political whims of the day, but, instead, will be
preserved as the basic rights guaranteed by the United States
Constitution. In the words of Abigail Adams, ``Remember the
ladies.'' It would be wise, Mr. President, and to our
government to remember the ladies, the ladies who have stood up
and fought, who never stepped down when it came to serving our
country and taking care of the least of us.
I join today with such pride with all the women who are
here today, the witnesses, and I look forward to hearing from
you who are in the fight. And I thank you, and I yield back.
Chairwoman Maloney. The gentlelady yields back, and I now
recognize the distinguished ranking member, my good friend, Mr.
Comer, for his opening statement, and ask him to please
understand, on a personal level, I ran for Congress to ratify
the Equal Rights Amendment. That was my goal, and this is the
first hearing in a full committee that I have been able to
achieve that. So if I spoke a little too long or took the
liberty of recognizing two incredible women leaders who have
been fighting just as hard as I have for this hearing and for
the Equal Rights Amendment, and I certainly grant as much time
as the gentleman would like. And if you have two other members
that would like to speak, we certainly will recognize your
right to do so, and I appreciate your cooperation on postal and
on this. Thank you.
Mr. Comer. Thank you, Chairwoman Maloney, and
congratulations on holding this hearing. Hopefully we will have
some hearings that our side has been advocating for.
But the message that I want to deliver today is all
Americans, men and women, should be treated equally under the
law regardless of their race, religion, or sex. Fortunately,
all citizens of the United States are already guaranteed due
process under the Fifth and Fourteenth Amendments to the United
States Constitution and guaranteed equal protection under the
Fourteenth Amendment. Federal laws, such as the Civil Rights
Act of 1964, Title VII, the Equal Pay Act, and Title IX of the
Education Amendments of 1972 already prohibit discrimination on
the basis of sex in compensation, public accommodations, and
federally funded programs. Despite what Democrats are telling
us today, the 1970's, ERA--Equal Rights Amendment--is simply
unnecessary and would be redundant of protections that already
exist.
In fact one of our witnesses today, Inez Stepman, will
testify about the many potential adverse effects that the Equal
Rights Amendment would have on this country, particularly on
women. By taking away flexibility in our current legal regime
that protects women's privacy, safety, and the ability to
protect against harassment, the Equal Rights Amendment would
usher in an era of judge-created rules that could negatively
impact women. The Equal Rights Amendment could jeopardize
programs, such as women's shelters and the WIC Program. It
could force the elimination of sex-segregated public
facilities, such as women's prisons and public school
restrooms. It could also prevent female athletes from being
able to fairly compete in sports, not to mention the fact that
the Equal Rights Amendment was introduced 49 years ago and the
deadline to ratify it expired four decades ago. Several states
even rescinded their ratifications.
Whatever your views on the expired Equal Rights Amendment,
equality under the law for men and women is already guaranteed
by the Constitution and by statute, and rightfully so, yet we
are here talking about a long-expired proposed amendment. The
Oversight Committee should be conducting oversight hearings on
the Biden Administration or examining legislation actually
within our jurisdiction. We should be holding hearings on how
the Democrats' COVID-19 shutdown policies disproportionately
impacted women and how women are being left out of the already
slow economic recovery. We should be holding hearings with
Biden Administration officials to find out what they are doing
to solve the crises affecting Americans today.
This country is facing crisis after crisis, but it is clear
that our current political leadership is unable to meet these
challenges head on, even denying they exist in some instances.
Whether it is the disastrous withdrawal from Afghanistan, the
crisis on our border, rising inflation, or growing supply chain
issues, our committee should not remain on the sidelines. I
urge the Chairwoman to please act on the approximately 20
Republican requests for hearings or investigations we have
communicated this Congress. We should be doing our jobs to
ensure that our government works for all the American people.
Thank you, Madam Chairwoman, and I yield back.
Chairwoman Maloney. The gentleman yields back, and I would
like to yield to my good friend, Mr. Connolly, to introduce our
first witness, and also I would like to now waive onto the
committee Abigail Spanberger from the great state of Virginia,
the last one to ratify the Equal Rights Amendment. Thank you
for joining us.
Mr. Connolly, you are now recognized to introduce your
constituent.
Mr. Connolly. Thank you so much, Madam Chairwoman, and
thank you so much for having this hearing because I think it is
time. Virginia has acted. I am glad to be joined by my
colleague, Congresswoman Abigail Spanberger, in welcoming a
distinguished member of the State Senate of the Commonwealth of
Virginia, Jennifer McClellan. Senator McClellan has served the
Commonwealth of Virginia for more than 15 years as a member of
the House of Delegates and now in the State Senate. She has
been a tireless champion for women's rights throughout the
Commonwealth of Virginia, a fighter for progress, equity, and
justice.
Most recently, Senator McClellan introduced S.J. 1,
Virginia's Equal Rights Amendment ratification. After its
passage in 2020, Virginia became the 38th and qualifying state
to ratify the amendment to help our country take a major step
to join more than 100 nations that recognize equality based on
sex and gender in their respective constitutions. We would not
have passed the 28th amendment if we did not feel that we were
finally solidifying the full ratification of the Equal Rights
Amendment by the action taken by Senator McClellan and her
colleagues in the General Assembly of Virginia. We are proud of
that accomplishment, and we are delighted to have Senator
McClellan here, and I know she is going to describe later the
process and thinking that went behind that action.
Welcome, Senator McClellan. Thank you again for having this
hearing, Madam Chairwoman, and thank you for allowing
Congresswoman Spanberger and myself to welcome a distinguished
Virginian testifying today. I yield back.
Chairwoman Maloney. Thank you. And after Senator McClellan,
we will hear from Alyssa Milano, who is an actress, a writer,
and an ERA advocate. Next we will hear from Carol Jenkins, who
is the president of the ERA Coalition. We will then hear from
Inez Stepman, who is a senior policy analyst at the Independent
Women's Forum, and then we will hear from Ellie Smeal, who is
the founder and president of the Feminist Majority and
publisher of the Ms. Magazine. Next, we will hear from Bamby
Salcedo, who is the president of the TransLatin@ Coalition and
is a board member of the ERA Coalition. Last but not least, we
will hear from Victoria Nourse, who is a professor of law at
Georgetown University Law Center.
The witnesses will be unmuted so that we may swear them in.
Please raise your right hand.
Do you swear or affirm that the testimony you are about to
give is the truth, the whole truth, and nothing but the truth,
so help you God?
[A chorus of ayes.]
Chairwoman Maloney. Let the record show that the witnesses
answered in the affirmative. Thank you.
And without objection, your written statements will be made
part of the record.
With that, Senator McClellan from Virginia, you are now
recognized for your testimony.
STATEMENT OF THE HONORABLE JENNIFER MCCLELLAN, VIRGINIA STATE
SENATOR
Ms. McClellan. Thank you, Madam Chair, Representatives
Connolly and Spanberger, and members of the committee. I am
very honored to be here today. I am Virginia State Senator
Jennifer McClellan. I'm here as a daughter, granddaughter, and
great granddaughter of educators, domestic workers, community
leaders, and civil rights activists who struggled for equality
in the segregated South. I'm here as a mother who does not want
to leave the fight for equality to my children, Jackson and
Samantha. I am here as a legislator who helped lead Virginia to
become the 38th and final state necessary to ratify the Equal
Rights Amendment last year.
The history of my family and my Commonwealth is one of
facing inequities and working to create a better future for the
next generation. A hundred and 20 years ago, my great
grandfather, born on a plantation four years after
emancipation, had to pass a literacy test and find three white
men to vouch for him to be able to register to vote, but my
great grandmother couldn't. My grandfather and my father had to
pay poll taxes. My mother comes from generations of domestic
workers who served vital roles in our society and were often
overlooked or treated unfairly and paid very little. And while
my father could vote at the age of 22, my mother could not vote
until well into her 30's after passage of the Voting Rights Act
of 1965.
I carried these legacies with me into the Virginia House of
Delegates in 2006 at a time when there were only 16 women in
that chamber. I felt that imbalance when I became the first
delegate to give birth while in office and was asked if I would
have to resign or retire as a result, while a male colleague,
who became a father two months later, was not. For my family,
my Commonwealth, and my country, it has been a long march
toward equality, and it is a march that has included women of
color from the beginning, even when we have often been the last
to benefit from our work.
Black women, including the founders of my sorority, Delta
Sigma Theta, Incorporated, in their first public act in 1913,
marched for the right to vote in this very city, even when told
to march in the back. Black women marched for civil rights in
1965 from here to the Lincoln Memorial, even though not given a
speaking role, and women of color have led the way for the
passage of the ERA, including Representatives Shirley Chisholm
and Patsy Takemoto Mink 50 years ago when the House passed the
ERA. Virginia's ratification was led by multigenerational black
women, Senator Mamie Locke and myself in the Senate and former
Delegate Jennifer Carroll Foy in the House. Nevada's
ratification was led by Senator Pat Spearman. Other women of
color pushing their states to ratify the ERA include Arkansas
Senator Joyce Elliott, Florida Senator Audrey Gibson, North
Carolina Representative Carla Cunningham, South Carolina
Representative Gilda Cobb-Hunter, and Utah Representative Karen
Kwan, just to name a few.
I was proud to lead Virginia to become the 38th state to
ratify the ERA last year. And given our history, it is poetic
justice that it was Virginia to put the ERA over the top. In
1619, the men of Jamestown understood that for Virginia to be a
permanent settlement, they needed women, so they actively
recruited women to ``make wives to the inhabitants.'' And in
May of 1620, the first 90 women arrived in response to that
call, and their rights were surrendered to their husbands. They
could not vote. They could not hold public office. They could
not own or control property. African women and men who arrived
on these shores in 1619 were considered property and had even
fewer, if any, rights. And as you heard, in 1776 when Abigail
Adams wrote to her husband as he went to the Continental
Congress, she implored him and his fellow delegates to
``Remember the ladies and be more generous and favorable to
them than your ancestors.'' They didn't.
Over the past 245 years, we have made progress slowly, but
true equality under the law for women, and especially women of
color, has been elusive. With the ratifications of the Equal
Rights Amendment by Nevada, Illinois, and Virginia, the states
have now done our part. It is now time for the national
archivist to do his and certify the ratifications of these
three states and publish the amendment. To the extent
congressional action is needed, I ask you to take it
immediately.
It is time--it is past time--for the U.S. Constitution to
join over 100 constitutions across the world in having gender
equality in the Constitution, including every constitution
adopted since World War II. It is time for me to stop fighting
the same fights that my mother, my grandmother, and my great-
grandmother had to fight. It is time for me to tell my
children, Jackson and Samantha, that the United States
Constitution guarantees them both equality under the law. And I
thank you for this opportunity to speak today.
Chairwoman Maloney. Thank you for your testimony.
Ms. Milano, you are now recognized for your testimony.
STATEMENT OF ALYSSA MILANO, ACTOR AND ERA ADVOCATE
Ms. Milano. Madam Chair, distinguished members of the
committee, thank you for holding this hearing and for inviting
me to share some thoughts with you today. While I will speak
briefly about the importance of the ERA, this hearing is not a
debate on that amendment. That debate is over. We won. The
states have directed Congress to amend the Constitution, and
now it is the duty of Congress and the Administration to get
out of the way and remove the arbitrary, unnecessary, and
shameful deadline that was cynically imposed nearly half a
century ago as a poison pill.
Since the earliest days of our Nation, women have been
fighting--not waiting, but fighting--for inclusion in our
founding document. From the Seneca Falls suffragists to Alice
Paul, from Shirley Chisholm and Gloria Steinem to the inspiring
generation of young women and queer activists and allies of the
New Millennium, we have pleaded for centuries for a simple and
powerful thing: equality under the law. I want my daughter,
Bella, to grow up knowing she has the same rights as every man
in this country, and I want my son, Milo, and every boy in
America, to know that too. They deserve a government that
cannot treat them differently because of gender.
If there is one word which defines the American identity,
it is ``freedom.'' We call our President the leader of the free
world. When we present ourselves to other nations advocating
across the globe for democracy and human rights, it is freedom
which drives that discussion. There are even members of this
very committee who belong to something called the Freedom
Caucus. But how can we be a free people when our governing
document does not prohibit discrimination against more than
half of the population? The answer, of course, is that we
cannot.
The lack of constitutional protections for anyone who is
not a cisgender man is a blemish on the very idea of
Americanism.
Chairwoman Maloney. Alyssa, we are having a technical
problem.
Ms. Milano. Oh.
Chairwoman Maloney. And we need to correct it with the
Zoom.
Ms. Milano. OK.
Chairwoman Maloney. We are going to recess just for a
moment to try to correct it.
Ms. Milano. OK.
Chairwoman Maloney. Because----
Ms. Milano. The ghost of Alice Paul.
[Laughter.]
Chairwoman Maloney. OK.
[Recess.]
Chairwoman Maloney. Can you hear me now? Yes, they can hear
us now.
OK. Great. So we are now back in order, and, Ms. Milano, if
you would please continue. And my apologies for this
disruption.
Ms. Milano. Thank you, Madam Chairperson. How can we be a
free people when our governing document does not prohibit
discrimination against more than half of our population? The
answer is, of course, we cannot. The lack of constitutional
protections for anyone who is not a cisgender man is a blemish
on the very idea of Americanism. As long as the Constitution
allows gender-based discrimination, the United States can never
achieve the greatness to which it aspires.
Eighty-five percent of U.N. member states have
constitutions which explicitly guarantee equality for women and
girls. Madam Chair, if you lived in Latvia or Iceland, you
would be assured of having the same rights as the men on this
committee. Here in the United States of America, you are not.
Today a white man on this committee will probably ask me which
rights American women do not have that American men do. Allow
me to preempt that question. There are many current gender-
driven injustices in our country, but the Constitution is not
simply about the present. The Constitution is about what we
bring far into the future. It exists to protect us from the
what ifs.
The ERA will outlive every one of us. It is a permanent
protection of our most basic rights. Your obligation to the
people of our Nation, not just today, but in the centuries to
come, requires you to take action. The framers failed us when
they did not include women in the Constitution. Congress failed
us when it added the deadline for ratification of the ERA. You,
the members of this committee, have the opportunity and the
obligation to fix the Constitution and stop it from failing us.
Will you take it? Will you answer the call of history and the
promise of the future, or will you continue to allow the
enemies of equality to continue to prevent America from being a
truly free Nation? These are your only options.
Thank you for your time.
Chairwoman Maloney. Thank you. Ms. Jenkins, you are now
recognized for your testimony.
STATEMENT OF CAROL JENKINS, PRESIDENT, ERA COALITION
Ms. Jenkins. Thank you so much, Chairwoman Maloney, for the
invitation to speak here today, and to Ranking Member James
Comer as well, and for the entire committee for holding a
hearing on this important issue.
It is well past time to lift the time limit. It is well
past time to talk about the Equal Rights Amendment, and the
first full committee hearing since the 1970's is absolutely
long overdue. This is an important step for sex equality and
for democracy, and we are grateful to be here. And I especially
am grateful to be in this room named for one of my heroes,
Elijah Cummings. And I always loved one of his admonishments to
us that, ``We can do better than this,'' and this is what I
feel about America and its girls and women. We can do better
than this. I am glad to be here with my board members, Alyssa
Milano and Bamby Salcedo, who are leading this effort in this
country for equality. My name is Carol Jenkins, and I am
grateful to be serving as the president and CEO of the ERA
Coalition and its sister organization, the Fund for Women's
Equality.
I have been fighting for what I call simple and pure
equality, which is the concept of the Equal Rights Amendment,
for almost my entire life. This, what I call an agitation for
democracy and equality, runs through my veins. I was born in
one of the poorest counties in America, both then when I was
born some time ago and still today one of the poorest schools.
It's called Lowndes County, Alabama. It was farm country just
outside of the capital city of Montgomery. They used to call it
Bloody Lowndes where they lynched people for wanting to vote
and much, much less. My cousin sat in at segregated lunch
counters and got arrested and brutally beaten for the right to
a cup of coffee. My successful businessman uncle bailed Martin
Luther King, Jr. out of the Birmingham jail as he sat there
writing his famous letter that helped change our lives. Our
family farm, that Lowndes County farm, was the third stopover
in the historic march from Selma to Montgomery.
I spent nearly a quarter of a century as a reporter
documenting the failure of our democracy and its incremental
improvement, and in South Africa where I covered one of the
most spectacular victories of persistence, Nelson Mandela
emerging from prison alive and eager. And this was after 27
years of imprisonment, breaking the back of apartheid and
releasing millions of black-skinned people from a hellish
state-sanctioned way of life. This fight for the ERA has lasted
a century. The women and men who have waged this war against
discrimination are every bit as determined as MLK and Nelson
Mandela, and the rights we are fighting for our equally
important.
Fifty years ago in 1970, our board member, Gloria Steinem,
spoke right here in Congress in a hearing on the Equal Rights
Amendment before the Senate and talked about the perpetual
falsehood, one we still hear today. She said, ``Another myth is
that women are already treated equally in this society. I am
sure there has been ample testimony to prove that equal pay for
equal work, equal chance for advancement, and equal training or
encouragement is obscenely scarce in every field.'' She said
that 50 years ago. It's still true today. And despite stating
the case for the ERA in Congress 50 years ago, Gloria Steinem,
Ellie Smeal--glad to be sitting next to another one of our
leaders--and many others are still fighting for these same
rights in 2021.
And women of color, and black women in particular, have
always been at the forefront of this movement. Shirley Chisholm
gave a fiery testimony right here on the House floor in support
of the Equal Rights Amendment. Her support for the amendment,
too, led the way for passage of the ERA in the House of
Representatives the following year, 50 years ago. And it was a
queer black episcopal priest lawyer and author named Pauli
Murray who was the architect of the litigation strategy used by
Ruth Bader Ginsburg while arguing in support of a Fourteenth
Amendment to the Constitution. This led to Pauli being
recognized as one of the mothers of the modern sex equality
movement, and her arguments for equality for women included the
intersectional take on her own identity as well, calling the
meeting of racism and sexism ``Jane Crow.'' Pauli spoke about
these overlapping identities in her powerful and persuasive
testimony on the ERA.
Black women have also led the ratification efforts of the
last three states needed to reach the 38-state threshold
required by the Constitution for all amendments. This revived
the current fight for the Equal Rights Amendment across states
and in Congress. State Senator Pat Spearman, another queer
black woman, led the successful charge for ratification in
Nevada in 2017. The next to last state to ratify, Illinois, saw
Black lawmakers, including State Senator Kimberly Lightford,
then-State Representative Litesa Wallace, and then-State
Representative Juliana Stratton lead the fight in 2018. And of
course, as we have heard, in January 2020 in Virginia, a
multigenerational group of black women lawmakers led the
ratification of the ERA, including State Senator Jennifer
McClellan, who so eloquently and wonderfully led that fight,
State Senator Mamie Locke, then-State Delegate Jennifer Carroll
Foy. Other key lawmakers in Virginia during ratification were
Delegate Hala Ayala, an Afro-Latina woman, and Delegate Danica
Roem, the first out transgender woman to serve in a state
legislature.
This movement continues to move forward with black women in
places of leadership throughout the advocacy space as well.
Many of the organizations that are part of the ERA coalition
are, in fact, now led by black women, including Supermajority,
NOW, the League of Women Voters, and others, and the Coalition
itself is presided over by black women. I lead and we have two
board chairs, Kimberly Peeler-Allen and S. Mona Sinha. We are
actually a tremendously broad coalition of movements, nearly
200 organizations representing women's rights, civil and voting
rights, LGBTQ and trans rights, disability rights, faith
groups, and workers' rights, including unions representing
airline workers, 80,000 miners, and 350,000 teachers. We are
all united in this effort to eliminate discrimination based on
sex.
The ERA Coalition began providing a collective place for
ERA action in 2014, and in these eight years we have gathered
these nearly 200 organizations as equality partners. We have
worked in the states. We were present in the gallery when
Virginia became the 38th and final state needed for
ratification. We were in Congress with Congresswoman Maloney to
mount a shadow ERA hearing in Congress to demonstrate why the
time limit needed to be removed. Congressman Jerry Nadler told
us that day that if he became chair of Judiciary, he would give
us a real hearing, and he delivered on his promise in 2020. And
we were there with Speaker Pelosi and Congressman Speier.
Mr. Comer. Madam Chair?
Ms. Jenkins [continuing]. When the House passed the time
limit bill, and I will state that----
Chairwoman Maloney. Your time is long past, and that was a
subcommittee hearing that we had then. But your time has
expired, as the gentleman points out, so can you wrap up and we
will----
Ms. Jenkins. Certainly. I will just say that as the
grandmother of two biracial children who have two mothers, I
want this country to reflect their lives. I don't want them to
be ashamed of who they are. I want their ability to be
recognized in the Constitution of the United States to be true
equality, and I believe the only way that can happen is by
enacting the ERA. Thank you.
Chairwoman Maloney. Thank you. Ms. Stepman, you are now
recognized for your testimony.
STATEMENT OF INEZ FELTSCHER STEPMAN, SENIOR POLICY ANALYST,
INDEPENDENT WOMEN'S FORUM
Ms. Stepman. Chairwoman Maloney, Ranking Member Comer,
distinguished members of the Committee on Oversight and Reform,
I am honored to testify today against the proposed Equal Rights
Amendment to the United States Constitution. I currently serve
as a senior policy analyst with Independent Women's Voice and
the Independent Women's Law Center.
Today in the United States, men and women are equal under
the law, but, crucially, not interchangeable. We do not require
that the law treat men and women exactly the same in all
circumstances, even when they are incarcerated, in the sports
arena, on the front lines of combat, because we understand that
in some limited situations, physical and biological differences
matter deeply. In those situations, the law is permitted to
recognize the very real differences between males and females.
In hundreds of everyday instances, that recognition allows
women and girls to take advantage of opportunities, compete,
and even feel safe.
The recognition of biological sex has been a necessary
prerequisite for the freedom, prosperity, and success American
women have enjoyed these past several decades. These laws have
created opportunities for women, maintained our privacy, and
even protected our safety in situations where those differences
become relevant and come with serious consequences. State,
Federal, and constitutional law all protect basic sex equality
in 2021. Our Nation's law books are replete with prohibitions
on sex discrimination in education, athletics, housing,
employment, including prohibitions on sexual harassment and
unequal pay. To the extent that discrimination against women in
these areas still exists, it is already illegal, and the ERA
will add nothing to the protections that women already enjoy.
The ERA, if written into our highest law in an illegitimate
amendment process, will not advance the position of women and
girls in our society, but will instead undermine the successes
we have already attained and even place us in harm's way. For
example, incarcerated women have until recently been able to
rely on being housed in a prison only with other women on the
commonsense assumption that it is dangerous to house female
inmates with male ones in close quarters, and that co-ed
prisons make women vulnerable to physical and sexual assault.
But under our current legal protections, the government is not
allowed to, and should not be allowed to, discriminate on the
basis of race the way that it does by separating men and
women's prisons. In Johnson v. California, the Supreme Court
held that preventing violence in prisons does not rise to the
level of government interest required by the Constitution. If
the same strict scrutiny standard were applied to single-sex
prisons under the Equal Rights Amendment, a conservative
interpretation of its legal impact, by the way, women would
quickly find themselves at the mercy of male prisoners.
These consequences are already happening in states that are
allowing male-bodied inmates who identify as female to transfer
to the women's prisons, and that policy has already resulted in
sexual assaults on female inmates. But the ERA could
potentially make the problem far worse by extending that
invitation, not just to a small percentage of people who are
born one sex and identify as another, but to all male prisoners
regardless of identification. After all, ``discriminating''
against men by keeping them out of women's prisons is a
discrimination on the basis of sex, exactly the kind of policy
a plain language reading of the ERA is intended to prevent.
The same rationale could apply to any context in which the
government separates or distinguishes between men and women,
for example, when selecting a same-sex TSA agent to administer
a pat down at the airport. Similarly, public schools, whether
on the K-12 or university level, would not be able to maintain
separate bathrooms, locker rooms, or sports teams for boys and
girls. Universities would not be able to maintain separate
dorms for male and female students, and campus-connected
sororities and fraternities would potentially become,
overnight, constitutional violations. A boy whose 100-meter
dash time qualifies him for the girl's team but not for the
boy's team is kept off the former only by a ``discrimination''
on the basis of sex.
Again, we are dealing with the ramifications of
accommodating individuals whose gender identity does not match
their born sex in all of these contexts already. But the ERA
would throw the doors wide open to all males in these settings
and more. Recognition of biological reality is not bigotry or
discrimination. When we treat men and women as though there are
no differences in size, strength, or otherwise between them, we
create more female victims. Equality between men and women
doesn't mean treating us exactly the same. Treating males and
females exactly the same regardless of biology, privacy, or
circumstance, hurts women and girls.
In 2021, the ERA has no upside. The language might sound
nice, but it will not improve women's lives. To the contrary,
by prohibiting public policy from ever taking into account
biology and common sense, and by short circuiting debate
through an illegally rushed process, the ERA would deny the 62
percent of the electorate who weren't of age or born when we
last considered the consequences of the ERA a chance to weigh
in on the question of whether women and men should be treated
identically in all circumstances. And by the way, the majority
of that electorate is women.
The ERA would harm women and girls, and I urge you to vote
against its much-belated resuscitation.
Chairwoman Maloney. Thank you. Ms. Smeal, you are now
recognized for your testimony.
[No response.]
Ms. Smeal. Thank you. I'm Eleanor Smeal, president of----
Chairwoman Maloney. Excuse me. You don't have your
microphone on and we can't hear you. It is the red button front
of you. Great.
STATEMENT OF ELEANOR SMEAL, FOUNDER AND PRESIDENT, FEMINIST
MAJORITY FOUNDATION
Ms. Smeal. Thank you very much, and thank you, Chairwoman
Maloney, for your years, and your persistence, and your
leadership, and your dedication to the ratification of the
Equal Rights Amendment and to place it in the Constitution.
Your leadership has been marvelous for all in this country, and
I am so happy about being here today. I am honored to work with
you and this committee in asking for the ERA to be certified in
the Constitution.
I started, but you already said it, and I am going to say
it again. The Equal Rights Amendment is 52 words. It is simple.
It's ``Equality of rights under the law shall not be denied or
abridged by the United States or any state on account of sex.''
The second clause is short: ``Congress shall have the power to
enforce by appropriate legislation the provisions of this
article.'' And finally, the last section, one sentence: ``This
amendment shall take effect two years after the date of
ratification.''
I have worked for the passage of the Equal Rights Amendment
for over 50 years. The arguments that you have just heard, I
have had to listen to for over 50 years. I know what side I've
been on because while we have been fighting for gender equality
to be placed in the Constitution, we have also been fighting
day in and day out to empower women and girls and to win gender
equality for all. Feminist Majority and the Feminist Majority
Foundation are both dedicated to this principle, and we've
worked on all kinds of programs. But let me just go a little
bit into my history on the Equal Rights Amendment and you will
see why I feel so deeply about this.
I began my work as a young activist in the Pittsburgh,
Pennsylvania chapter of the National Organization for Women. I
was really lucky that chapter had the national president, Wilma
Scott Heide, and the national coordinator--this is now 1970--of
the task force to pass the Equal Rights Amendment, Jean Witter.
And why do I say their names, and I'm going to try pepper more
names in. Because thousands and thousands of people have fought
for this amendment, and, while they were fighting for it, for
equality in many other ways. Our chapter got rid of help wanted
ads, men and female. We sued the Pittsburgh press at that time,
but we only won by a 5 to 4 decision, even though it was
blatant, prima facie discrimination: only 20 different jobs
advertised for women and several hundred for the men.
Now, in fighting, we also passed the Pennsylvania Equal
Rights Amendment, which was one of the strongest state ones. We
fought in state after state and we now have in over two dozen
states. At the same time we did that, just a small group of
women broke up the hearing for the 18-year-old vote so there
would finally be a hearing in the Senate on the Equal Rights
Amendment. The reason it's taken so long, these 100 years, is
we lost about 50 of them and, I mean, 50 of them, very bright
wonderful leaders.
How did we lose it? They boxed it up in committee. They
wouldn't allow a vote. In fact, to get the first vote and the
vote to ratify in the House took 50 years because it was boxed
up in the Judiciary Committee and they wouldn't allow a vote.
And why wouldn't they allow a vote? This has been so popular,
they knew it would pass overwhelmingly when, in fact, it would
be placed on the floor. And when it was, after a discharge
petition by Martha Griffiths, and I had the pleasure to work
with her at the very beginning of my own career, it was passed
354 to 24 people, overwhelmingly, I would say, bipartisan.
To get it going in the Senate, we disrupted the hearings of
the 18-year-old vote and got a promise from Birch Bayh, the
major sponsor in the Senate, that he would finally hold
hearings on it. And so, in 1972, we won 84 to 8. These are not
close votes because why? We were way ahead in the polls. People
wanted equality for women. But we had to keep fighting, and at
first it went really, really fast, but it got bottled up again
in delays, delays, delays. For example, we are all grateful for
the 38th state of Virginia ratifying, but we should say what
happened in Virginia. It was bottled up in the Privileges and
Elections Committee of the House for about 50 years, and when
it comes out, we passed it, but it didn't come out until the
year 2020. Bottled up.
Now, what happened in between? I hear all the time about
Title VII, Title IX. We worked to put those things on the
books. Feminists worked. One of the things they keep on saying,
you have all these guarantees, but what they don't say is that
along the way, and we had a hard time on this at first--we now
don't have that hard time--but is that others tried to defeat
and undermine Title VII and Title IX. In fact, Title IX, by the
Reagan Administration, was gutted by the Grove City case. I
don't have the time to go into that whole case, but we had to
work to restore it and pass an amendment to restore it. The
thing with Title VII, the Roberts Court gutted----
Mr. Comer. Madam Chair?
Chairwoman Maloney. The gentleman is pointing out that your
time has expired.
Ms. Smeal. OK.
Chairwoman Maloney. And you have pointed out very important
reasons why we need it because it can be rolled back and
overturned.
Ms. Smeal. Rolled back.
Chairwoman Maloney. So thank you for that, but all your
testimony will be in the record.
Chairwoman Maloney. I now recognize Ms. Salcedo. You are
recognized for your testimony.
STATEMENT OF BAMBY SALCEDO, PRESIDENT, TRANSLATIN@ COALITION,
AND BOARD MEMBER, ERA COALITION
Ms. Salcedo. Thank you, Madam Chair.
[Speaking foreign language.] Greetings, everyone. I know it
was hard for some of you to understand what I just said, but it
is customary for me that before I speak, I acknowledge my
Creator for allowing me to breathe one more day. I also honor
the land where we're standing today, and I ask permission from
the Natcotchtank and the Piscataway peoples to allow me to
speak in their land today.
I'm humbly grateful to be in your presence today. Thank
you, Chairwoman Maloney and members of this committee, for
allowing me to share my experience, strength, and hope with you
today. My name is Bamby Salcedo, and I'm a very privileged
trans Latina woman who has the honor to be the president and
the CEO of the TransLatin@ Coalition, a national advocacy
organization based in Los Angeles that also provides social
support and lifesaving services to trans, gender non-
conforming, and intersex people. I also serve as a board member
of the ERA Coalition.
My experience is that of a person who has had the
opportunity to survive many horrific experiences simply for
being who I am: a trans woman who is Latina, an immigrant,
someone who has overcome constant discrimination, multiple
sexual assaults, homelessness, drug addiction including
overdoses, and left for death in alleys. I spent over 14 years
of my life incarcerated. I have been chased out of
neighborhoods and beaten. I had to do sex work as a means to
survive. I have had guns pointed into my head. I committed
multiple suicide attempts.
I experienced all of this because I was pushed by our
society because there were no laws or protections against
discrimination to protect people like myself. I can honestly
say that I have survived things that you probably are not able
to imagine. But what is most unfortunate is that the same
issues that I have endured and overcome, many members of my
community are experiencing today all across the country, even
in California which is the state that has the most inclusive
legislation to protect trans people.
2021 will be a record number of murders in the trans
community. I have seen many of my friends die. I have organized
more funerals than celebrations in my community. All of this
because we have no national legislation that will serve as a
protection for all people. I know that you are probably going
to say what about the Equality Act. The truth is that the
Equality Act does not look at all of the intersections across
my life and will not provide constitutional equality. For
example, I am glad my friend Monica Ramirez started Latina
Equal Pay Day, which we're acknowledging with sadness today. As
a trans Latina woman, the pay gap is enormous. The
discrimination that we experience while trying to get
employment in the workplace is rampant. The Equality Act will
not support other trans women and me obtaining employment and
being compensated and valued equally for our work. The Equal
Rights Amendment will help ensure no discrimination against all
peoples--poor, indigenous, black, trans women. All peoples.
My strength is that I get to share with you who I am and
what I have overcome, and how people have uplifted me and
supported me to heal my wounds, which, unfortunately, our
government has failed to do. My strength is that I speak to you
with my truth because my truth is my power. My hope is that you
understand the opportunity that we have in this moment in time,
that you understand that the Equal Rights Amendment is what our
Nation needs right now to heal the intergenerational wounds
generated against the most marginalized. I hope you open your
hearts and your minds, and you do the humane thing to ensure
that all peoples, not only those who are like me, have the
rights that we deserve, that we get to be acknowledged as the
human beings that we are, that we are given some dignity, and
that we honor the work of many people who have tried for more
than five decades to ratify the Equal Rights Amendment. We have
an excellent opportunity to support all peoples and not just
some. While I support the Equality Act and its passage, the
ratification of the Equal Rights Amendment nationally needs to
happen. I hope that I get to see the passage of the Equal
Rights Amendment in my lifetime.
Every day I am afraid that I can be killed simply because I
am a trans woman. I ask that you see that there is no other
time like what we have today, that we do not continue to see
divisions nor continue to feel messages that say some people
are more deserving than others, but that we see people in this
country need to be protected in value, and that you use your
power to ensure the affirmation of the Equal Rights Amendment.
There is no time like the present, and the time to act
favorably about the Equal Rights Amendment is now. Please be on
the right side of history. Only you can do that for yourself,
and many people depend on you to what is humane.
I am sure that generations to come will see then who are
the people who understood what human and civil rights are, who
used their power for the betterment of all peoples. Today is a
historic day, and I want for you to ask yourselves, do I want
to be on the right side of history. I hope your conscience says
yes. I invite you to imagine a new world, a world of
constitutional equality and freedom for all.
Thank you so much for the opportunity to be in your
presence today.
Chairwoman Maloney. Thank you. And, Professor Nourse, you
are now recognized for your testimony.
STATEMENT OF VICTORIA NOURSE, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER
Ms. Nourse. Thank you, Chairwoman Maloney and Ranking
Member Comer. It is a delight to be here with these wonderful
women and thank you for your leadership. My name is Victoria
Nourse. I'm the Ralph Whitworth Professor of Law at Georgetown
and teach about constitutional and statutory interpretation.
I ask first-year constitutional law students to read the
Constitution's text. It is a beautiful text of 4,000 words. But
then I ask them what is absent from the text, and I say, well,
does it say anything about sex discrimination and work? Could
you be fired because you are a woman, or a man for that matter,
and they look very hard in the text, and they are disappointed
to find nothing. Now, I understand there have been people here
talking about rights being protected. They're talking about
statutes. Those statutes can be taken away by Congress and they
can be declared unconstitutional by the Supreme Court.
Justice Scalia was quite candid about the text of the
Constitution. He was a great friend of Georgetown, and he would
come to the law school and talk about the text of the
Constitution and the Fourteenth Amendment. Now, he was very
candid when he gave an interview and he explained that the
words ``equal protection''--the Fourteenth Amendment has been
mentioned today--do not cover women. This is what he said:
``Certainly the Constitution does not require discrimination on
the basis of sex. The only issue is whether it prohibits it.
Nobody ever thought that that is what it meant.'' He's
referring to the Fourteenth Amendment. ``Nobody ever voted for
that. If the current society wants to outlaw discrimination by
sex, hey, we have things called legislators and they enact
things called laws.'' Justice Scalia told women to look to
Congress, not the Constitution, for their rights.
Recently I watched the brave testimony of gymnasts Simone
Biles, Aly Raisman, Maggie Nichols, and others who testified
about their sexual assault and why the Federal Government had
done so little, how the law had failed them, how they were
disbelieved and ignored. It was something of a deja vu for me.
Thirty years earlier in the year 1990, I was a very young baby
lawyer sitting behind a man named Joe Biden on the Senate
Judiciary Committee, and I listened to emotional testimony like
that of Bamby today about how the legal system had treated them
as second-class citizens. It has been 30 years since that
testimony, and yet those brave Olympians were saying the law
still did not protect them, that the FBI had turned a blind
eye, and I knew the deep reason for this. Why? It resides in
the Constitution and let me explain that.
In 1994, Congress passed a bipartisan bill that might have
helped many sexually assaulted and harassed women of color and
sexual orientation, and that would've included the Olympians,
the survivors of Weinstein, and others. The original Biden
Violence Against Women Act included a civil rights remedy so
you go to civil court. If the criminal justice system doesn't
work, go to civil court. Women did not need to go to the FBI.
If the criminal justice system treated them poorly, they had
justice in their own hands, and it worked for six years. But
then in 2000, guess what happened? The Supreme Court struck it
down. So a future supreme court, as Ms. Milano said, you don't
need to be a constitutional law professor to realize that the
Supreme Court can strike down a law passed by Congress.
In Morrison, the Court said not under the equal protection
clause of the Fourteenth Amendment nor under the commerce
clause did Congress have the power to enact a civil rights
remedy to protect against sexual violence and harassment. Now,
I urge Congress to rethink this. I know that President Biden
supports this remedy, but the moral of my story is much
broader. It's about the Constitution. We now have a Court of
nine unelected men and women, six of whom idealize Justice
Scalia. The six justices who have publicly aligned themselves
with him have a judicial philosophy, and I have debated Justice
Barrett before when she was a law professor. She's a lovely
woman, but she has a judicial philosophy that she thinks
insulates her from bias, and that judicial philosophy is known
as textualism or originalism. I write about this. I study it.
What that means is if it is not in the Constitution, it doesn't
exist. This is a new theory. No one ever told me in law school
about it. So even if there are precedents on the books that
were mentioned by one of the witnesses and by Mr. Comer about
the Fourteenth Amendment, there is no guarantee that this Court
will not overturn them.
So ladies, and to my daughter and to my son, be afraid.
Other than the Nineteenth Amendment which gave women the right
to vote, women are not recognized in the Constitution's text.
Without the Equal Rights Amendment as a constitutional
insurance policy, all of the things that women take for granted
could simply go away with a vote of five men on the Supreme
Court. Unequal protection is not a fantasy. It is a reality
every day for women who are harassed or sexually assaulted, the
victims of domestic violence. Harassment with impunity
structurally protects racial and age discrimination as well. It
is no wonder that interest in the ERA has mushroomed in the Me
Too/Time's Up era. Young women know----
Voice. Madam Chairwoman?
Ms. Nourse. Let me just say one final word about this
amendment. The time limit was in the preface to the amendment,
not in the text. So, when the 38th state ratified, it was
ratified. If necessary, Congress has the power to extend the
deadline, but that is only if necessary, and the OLC opinion,
in my view, has no legal validity and it is not law. Thank you.
Chairwoman Maloney. Thank you for your testimony.
I now recognize myself for five minutes for questions.
The effort to adopt the ERA is more than 100 years in the
making. The century of work for constitutional equality shows
how important it is to women and how tenacious we are in
working for it. On October 12, 1971--50 years ago--the ERA
passed the House. It was widely popular on both sides of the
aisle. And even in today's extreme polarization, the ERA is
still incredibly popular with the American people, both
Democrats and Republicans. Professor, we know it has been
ratified by the requisite number of states, and I believe it
already should be part of the Constitution. Professor Nourse,
as a constitutional legal scholar, is there a constitutional
role for the executive branch in the amending process?
Ms. Nourse. No, and the Supreme Court has so held.
Chairwoman Maloney. And, Professor, the Trump
Administration issued a legal opinion claiming that the ERA
cannot be certified and that the time limit cannot be extended
or removed even by Congress. Is this memo binding legal
precedent?
Ms. Nourse. No, it is not binding legal precedent. I
actually believe that no President, whether Republican or
Democrat, has legal authority to issue a binding constitutional
opinion on Congress' authority because Article V only mentions
Congress. The President has no role.
Chairwoman Maloney. And do you agree with the memo's
assertion that the time limit cannot be extended or removed?
Ms. Nourse. I disagree with that. The text of Article V
says Congress. This is in Congress' authority, and there are
precedents as well that that memo is inconsistent with respect
to extending the deadline.
Chairwoman Maloney. And thank you. I agree with you that
the Trump opinion blocking the ERA is legally erroneous and
should be withdrawn. Ms. Smeal, you have been at the forefront
of this fight from the beginning. Why is the ERA still
necessary? After all of the progress that you have fought for
and that we have been able to achieve, do we still need it
today?
Ms. Smeal. Yes, we still----
Chairwoman Maloney. Can you turn on your mic because it is
not on.
Ms. Smeal. Yes, we need it. What I was trying to say is
that statutes can be easily changed, and they have been. Title
VII and Title IX have been changed. None of them are complete,
and we cannot rely on the Fourteenth Amendment or the
Interstate Commerce Clause. The Violence Against Women Act had
a section in it which said that the victim or the survivor
could take a Federal action, a civil action, to get damages in
Federal court if no one would defend her or if it was
inadequate at the state level. That was declared
unconstitutional. The ERA would give a survivor of sexual
violence a chance in the Federal courts.
And it was very clear that this gives the power to Congress
to enforce it through appropriate legislation. Without it,
Congress doesn't have the power. Everything is always a little
bit here, a little bit there. For example, the Affordable Care
Act prohibits sex discrimination in pricing and benefits.
Before it passed, the typical health insurance plan for a woman
did not cover maternity. In the typical plan, a woman was
paying between 150 percent and 200 percent more for similar
coverage, but no maternity coverage. This was outlawed by the
Affordable Care Act, but you know that they are trying to
reverse it, reverse it, reverse it. I could tell you other
insurances regulated at the state level, but a state can't
discriminate either. Life insurance, annuities, auto insurance
all have sex discrimination tied into it costing the average
woman, you know, totally billions and billions of dollars.
Chairwoman Maloney. All of this is so important. Please
place it in writing for the record.
Chairwoman Maloney. I only have a few seconds left, and I
wanted to ask our friend from Virginia, Senator McClellan, you
were so active in getting it passed. What did it take to get it
ratified in Virginia, and did the ratification effort have
bipartisan support? Can you share that with us?
Ms. McClellan. Thank you, Madam Chair. It took persistence
and it had bipartisan support from the beginning. The
resolution passed the Senate many times, sometimes carried by a
Democrat, sometimes carried by a Republican, and was always
bottled up in the Subcommittee of the House Privileges and
Elections Committee, never making it to the floor. When the
majority changed and the leadership changed and it was allowed
a vote in the committee and on the floor, it got bipartisan
support in both chambers.
Chairwoman Maloney. Thank you. It is clear that the ERA is
not only relevant, but it is necessary, and I urge the
archivist to formally certify and publish the ERA as the 28th
amendment to the Constitution. I want to thank all of you. My
time has expired.
And I would now like to recognize the gentleman from Ohio.
Mr. Gibbs is now recognized for five minutes.
Mr. Gibbs. Thank you, Madam Chair. First of all, I would
like to associate myself with the remarks made by the ranking
member in his opening remarks, Ranking Member Comer, about the
reason for this hearing, and also, I believe the Fifth and
Fourteenth Amendments guarantee equal protection under the
Constitution. And I would also like to associate myself with
his remarks. You know, we are facing multiple crises,
emergencies caused by the Biden Administration's policies,
inept policies, and they really require the attention of the
Oversight and Reform Committee and where I think we actually do
have jurisdiction. And, you know, our families are being beat
up right now with inflation and higher costs of living and
their concerns, and we are not having any hearings on those
crises, and we really should, Madam Chair.
I want to take a little bit of a different angle here. We
talk so much about how far we have come in this country in the
100 years of women's rights and equality, and I don't think
there is a person that would disagree, certainly not in
Congress, that it is very bipartisan that we all think that
women should have equal rights. They should have the same pay
for doing similar type work. They should be able to vote. Those
aren't debatable. We all believe that in our hearts. The
concern I have, even the late Justice Ruth Bader Ginsburg
talked about, you know, we really need to start over in the
process because it has been so long. So many things have
changed. And I have a concern that, we talked about it is not
in the Constitution, but there are lots of laws out there
protecting it, like Title IX, you know, equal pay, you know.
There are a lot of things out there to protect women, and there
is a debate, or a concern, I should say, but there hasn't
really been a debate because, like Madam Chair said, you said
that the archivist ought to just enact it now because all these
states have ratified it, even though we have five states, maybe
four states, that rescinded that before the deadline. That was
actually during the process, you know, nearly 40 or so years
ago.
So I think that, you know, we do need to have debate to
make sure that we don't do something that is going to harm
women's rights with all the progress we have made in this last
100 years. Let's face it. Even since this was proposed back in
the 70's, and, of course, it was originally written, as you
said, almost 100 years ago, a lot of things have changed and we
have come a long way, and we don't want, you know, to have
unintended consequences. So I would ask Ms. Stepman, is it not
true that the U.S. Constitution already guarantees equal
protection under the law for universal suffrage for women,
correct? Just kind of ``yes'' or ``no,'' Ms. Stepman.
Ms. Stepman. That is correct.
Mr. Gibbs. OK. Also, the Civil Rights Act of 1964 and the
Equal Pay Act of 1963. It is already illegal under these
Federal laws to discriminate against women. Is that correct?
Ms. Stepman. That is correct, and it is illegal in the
states as well.
Mr. Gibbs. OK. Is it also correct that, or true, I should
say, or correct that prior to the 1979 deadline, Idaho,
Kentucky, Nebraska, Tennessee, and South Dakota rescinded their
earlier past ratification?
Ms. Stepman. Yes, except I think South Dakota just had a
sunset clause on theirs.
Mr. Gibbs. OK.
Ms. Stepman. One of them. I can't remember which one
honestly. I am a little under pressure here.
Mr. Gibbs. That is fine.
Ms. Stepman. But one of those states had a sunset.
Mr. Gibbs. Well, the other side of the aisle keeps talking
about the, I guess, three states ratified it recently, and now
the archivist ought to just enact it into the Constitution. And
how about the states that decided maybe there were issues, they
made a mistake, and they rescinded it? Like I said, some of
those states actually did it before the deadline, so it seems
like, to me, that would be an open and shut case that it hasn't
been ratified by the required amount of states.
Also in your written testimony, or in your written
testimony, I should say, Ms. Stepman. In your previous
writings, you talked about the Equal Rights Amendment could
take away flexibility that protects a woman's privacy, safety,
and ability to protect against harassment. Can you describe
some of the flexibilities that currently exist that would be
jeopardized by the Equal Rights Amendment, especially if
decisions and interpretation were left to the courts?
Ms. Stepman. Absolutely. So the ERA could have a lot of
consequences for women and girls because this current regime,
even though we do have equal protection under the Fourteenth
Amendment and all of the civil rights law that you listed,
Congressman, unfortunately the ERA would make it inflexible,
right? So what we have right now is a regime that protects
women's equality with men, but still allows in limited, very
limited situations, those situations in which our biological
differences are actually relevant, that there is flexibility in
the law to recognize that. For example, as I mentioned, in
prisons, when we separate boys and girls in locker rooms and
public schools, right, when we have TSA pat downs from a member
of the same sex. These are all ways in which the law has
flexibility right now to recognize that in some situations it
makes sense to distinguish between men and women because we are
biologically different and ignoring that fact does not help
women and girls.
Mr. Gibbs. I totally agree, and my time is up. I would just
say, Madam Chair, that we ought to really take the advice of
late Justice Ruth Bader Ginsburg that we ought to restart the
process over and have a debate, and make sure we do the right
thing and don't err by unintended consequences. I yield back,
Madam Chair.
Chairwoman Maloney. The gentleman yields back, and I would
like to briefly address the issue of rescissions that he
brought up. For historical comparison, two states attempted to
rescind their ratification of the Fourteenth Amendment, but
they were rejected by Congress and the Fourteenth Amendment was
certified and published. It is also important to note that the
validity of rescissions has never been affirmed by the Supreme
Court.
I now recognize the gentleman from Massachusetts, Mr.
Lynch. You are now recognized, Mr. Lynch.
Mr. Lynch. Thank you, Madam Chair. I want to thank you also
for holding this hearing and for assembling such a
distinguished group of witnesses, and I am thankful for their
testimony. I would like to use some of my time to explore how
certifying the ERA would actually help the United States meet
its international obligations.
As most of us know, in 1980, President Carter signed the
International Convention on the Elimination of all Forms of
Discrimination Against Women. However, as we all know, the
United States did not ratify that convention, and as well, in
1992, the United States did ratify the International Covenant
on Civil and Political Rights, which, in part, does require the
United States to take steps to prevent sex discrimination and
gender-based violence, but we seemingly remain in
noncompliance. So, I know that Professor Nourse, and Ms.
Jenkins, and Ms. Smeal have been working on this issue for a
long time, but how would the passage of the Equal Rights
Amendment help the United States meet its international
obligations? Ms. Nourse, maybe you could take a first crack at
this. Thank you.
Ms. Nourse. Thank you for making that point. I think it is
very important to meet those international obligations. We are
not in compliance with a variety of international treaties. You
know, one of the things that I find surprising is that so many
democracies in the world, as mentioned by other witnesses, have
an ERA and we don't. We purport to be the greatest democracy in
the world. They have not, you know, had such a great difficulty
with it, so I think that it would be very important for
international obligations. And I will just mention that I think
that the premise that this would hurt women is incorrect
because the premise depends upon an assumption about how a
Supreme Court might interpret the law, which is incorrect. And
I could talk about that if anyone would like to hear me on it.
Mr. Lynch. Thank you. Ms. Jenkins, I know you have been
working on this for a long time and you have been fighting for
women's rights globally. Again, our international obligations
and, I would say, our moral authority around the world, how
would that be affected if we fail to adopt the ERA?
Ms. Jenkins. Well, we already are held in very low esteem
around the world, I would say, because of our failure to have
Equal Rights Amendment, our failure to join CEDAW, our failure
to participate in equality. I think that we have reached that
point where we no longer can stand in the bully pulpit and tell
other countries what to do about equality when we have
performed so poorly ourselves. And, you know, I think that, you
know, this century-long fight, you know, is just demonstrative.
You know, many people ask us, and I am an activist, not a
lawyer, but I am saying many people ask us why does America
hate its women. Why does it not want to give them equality? Why
do they have to beg? Why do they have to take to the streets
again and perpetually to ask for this non-discrimination, for
the ability to be a first-class citizen and not perpetually
left out? I think, you know, if you say that, well, this
statute is working and that one is working, and I say tell me,
you know, why are most of the impoverished of our country poor
women, you know. Why are they women? Why are families, you
know, headed by women, you know, trying to figure out how to
feed their children? You know, 1 in 3, you know, children in
this country are food insecure.
So, I think that if we go, again, back to, you know, as I
like to say, that if you are looking for the root of sexism and
misogyny, you will find it in our Constitution because it was
intended for a certain class of people who don't represent the
people who are on this panel and in this room today. So, I
think that we really, as a country need to rehabilitate
ourselves. We fixed the Constitution 27 times, you know, so we
know that it wasn't perfect. It needs to be fixed one more time
so that, you know, women are not second-class citizens, and it
is a shameful exhibit, you know, of ourselves around the world.
And I thank you for the question.
Mr. Lynch. Thank you, Madam Chair. I see my time has
expired, and I yield back.
Chairwoman Maloney. The gentleman yields back. The
gentleman from Wisconsin, Mr. Grothman, is recognized.
Mr. Grothman. Thanks for calling on me. I will ask Ms.
Feltscher-Stepman a couple questions.
Ms. Stepman. You can use ``Stepman.''
Mr. Grothman. First of all, I am looking here at a study
mentioned by Heritage Foundation. They claim that unmarried
childless women under 30 who live in cities earn more than
their male counterparts, their peer group. Do you believe that
is true and could you comment as to why you think that is true?
Ms. Stepman. Yes, I do believe that is true, and that is
because the wage gap that keeps getting mentioned during this
hearing is due overwhelmingly to different aggregate choices
that men and women make in their careers with regard to hours
worked, with regard to which college majors they choose, and
many, many other factors. In fact, the Obama Department of
Labor, so the Department of Labor under the Obama
Administration, put out a meta study that looked at a bunch of
different analyses and studies of the so-called pay gap, and
found that overwhelmingly that gap is explained by women's
choices in terms of what fields they want to go to and how they
balance family and career. So it makes perfect sense that young
women who do not have children, who are unmarried, who are
working in a similar way as young men do, would end up closing
that gap and, in some cases, even exceeding it because women
actually get the majority of college and higher degrees at this
point. So that is not surprising.
Mr. Grothman. OK. Looking at some other statistics here, it
says here that 93 percent of the workplace fatalities are to
men. Do you believe that statistic, and do you want to comment
on it?
Ms. Stepman. Sure. That is likely because men choose more
dangerous employment than do women. And, in fact, another one
of the points that was brought up earlier today by one of my
fellow witnesses was with regard, for example, to health
insurance costing more for women before the Affordable Care
Act. Well, car insurance costs more for men because men have
more car accidents. These are not instances of sex
discrimination or bigotry. These are instances in which men and
women behave as large groups, and there are always individual
exceptions, but as large groups and in the aggregate behave
differently and choose different life paths, different careers.
I don't find this to be a negative thing. I think it is a
positive thing that we live in a country that is free and
prosperous where women and men can choose their own paths, even
if they happen, on aggregate, to be different from one another.
Mr. Grothman. I wasn't going to ask this question, but
something Ms. Jenkins said caused me to look at it, and I would
like you to comment on this. It says here that 70 percent of
the homeless in our society are men. Do you want to comment on
that?
Ms. Stepman. It is just yet another example that, on
aggregate, we should expect that men and women will take
different life paths, both in a positive and negative way,
because there are many real biological differences between men
and women. That doesn't mean that we are not fundamentally
equal, that we shouldn't be equal under the law. But we do have
to have a law that is flexible enough to recognize when those
are instances of actual invidious discrimination where somebody
is preventing a woman from doing something simply because she
is a woman, or it is one of those situations in which men and
women differ and those differences are actually relevant to the
situation in question.
Mr. Grothman. This is, again, something, I can't vouch for
it, but Uber, you know, hires people. They have some men and
some women driving. Apparently there is a study, and there is
apparently a pay gap which the men who work for Uber are making
more than the women. Do you want to comment on that? Could that
possibly be true, and are there any conclusions you draw from
it?
Ms. Stepman. Sure. Uber pays by an algorithm, so there is
no possibility for any kind of intentional discrimination
between men and women, male and female Uber drivers. In fact,
that seven-percent pay gap that they found among their drivers
differing by sex was the result of, frankly, women driving a
little bit slower on average and a couple of other factors than
do men, right? So, again, we are seeing that these gaps emerge.
And I would point out that a lot of these countries that are
being brought up, like Iceland or Sweden who have ERAs, the
wage gap exists there, too, because these gaps do naturally
arise when men and women make different decisions.
And I don't know why the male standard of what decisions
they make in their career is the standard that female success
is pegged to. I think women having the freedom and opportunity
to make their own choices is actually what we are after by true
equality here. And I think the ERA would actually interfere or
destroy that kind of true equality that women and men do have
in this country.
Mr. Grothman. OK. Thank you.
Chairwoman Maloney. Thank you. The gentleman from Virginia,
Mr. Connolly, is recognized. Mr. Connolly? Thank you.
Mr. Connolly. Thank you, Madam Chairwoman. Professor
Nourse, Article V of the Constitution reads, and I quote, ``The
Congress, whenever two-thirds of both Houses shall deem it
necessary, shall propose amendments to the Constitution, which
shall be valid, to all intents and purposes, as part of the
Constitution when ratified by the legislatures of three-fourths
of the several states.'' Is that correct?
Ms. Nourse. That is correct and thank you for reading the
text.
Mr. Connolly. Thank you. Yes, the text always helps. Is
that text in any way modified or refined by any other language?
Ms. Nourse. No.
Mr. Connolly. No. Has the ERA, in fact, met that standard?
Have we, in fact, seen the amendment approved by two-thirds of
both the House of Representatives and the Senate?
Ms. Nourse. Yes.
Mr. Connolly. And has the ERA been ratified by the
legislatures of three-fourths of the states?
Ms. Nourse. Yes.
Mr. Connolly. Virginia being the 38th. Is that correct,
Senator McClellan?
Ms. Nourse. Thank you, Virginia.
Ms. McClellan. That is correct.
Mr. Connolly. You can confirm that.
Ms. McClellan. That is correct.
Mr. Connolly. So have we not met the standard of the
Constitution?
Ms. Nourse. We have met the standard of the Constitution.
Mr. Connolly. Well, why wouldn't it be subject to the same
criteria as the preceding 27 amendments to the Constitution?
Ms. Nourse. It should. You know, it took 203 years to get
the congressional pay amendment, so I think the only argument
here is about delay, and timing is not written into the text of
the Constitution.
Mr. Connolly. So we had statutory language putting a time
limit in the preamble to the language of the amendment itself.
Is that correct?
Ms. Nourse. That is correct. It is in the preamble.
Mr. Connolly. And what is your opinion about the legal
binding nature of such statutory limitation?
Ms. Nourse. I think Congress has plenary power to read that
as it wishes, so that it appears to me to be prefatory or
advisory language. That is not what the states ratified. If we
look at the amendment itself, there is prefatory language, and
then it says ``Article,'' and there is Section 1, 2, and 3.
That is what the states ratified, not the deadline.
Mr. Connolly. So we have a real live example in front of
us: Virginia, my home state. Senator McClellan, can you
enlighten us when you and your colleagues looked at the ERA,
given what Professor Nourse just said, how did your colleagues
look at the prefatory language in the statute versus the actual
text of the amendment in front of you, and why did you decide
you could proceed?
Ms. McClellan. We looked at the prefatory language as not
the amendment itself, and nothing in the Constitution discusses
timeframes or time limits, or even if they would be valid. And
so we looked at the text of the Constitution, and what it told
us to do was ratify the amendment. That is what we did.
Mr. Connolly. And it isn't that you ignored the language.
You took it into account, but you made a decision it wasn't
controlling.
Ms. McClellan. That is right.
Mr. Connolly. And, therefore, there was no impediment from
your point of view. I don't mean to put words in your mouth. I
am asking. There was no impediment to your actually acting in
ratifying the amendment.
Ms. McClellan. That is right. The states are told by
Article V to ratify. There is nothing in the amendment process
and the Constitution about deadlines or rescissions, and we did
what we were authorized to do under the Constitution.
Mr. Connolly. And did you in ratifying it assume that by
becoming the 38th state, you, in fact, had enshrined this
amendment into the Constitution?
Ms. McClellan. We did.
Mr. Connolly. Thank you very much for that testimony. I
just want to say, Madam Chairwoman, that the ranking member
mentioned rescission, and I think that is a bugaboo that needs
to be punctured, if I am not mixing my metaphors. When we go
down that road, we go down the road of, you know, let's rescind
the Thirteenth Amendment ending slavery in America. Let's, in
fact, rescind the 10 amendments to the Constitution of the
United States that were adopted or promulgated by the first
Congress with the aid and attention of a great Virginian, James
Madison, because, I don't know, we have changed our minds.
Where does that end?
And, you know, just like secession, rescission is not a
provision provided for in the Constitution of the United
States. In the case of secession, we fought a bloody, terrible
Civil War to make that point. Hopefully we don't have to do the
same about rescission. I contend, based on this testimony, that
the ERA is now an amendment to the Constitution, duly ratified
by the 38th state, the Commonwealth of Virginia. I yield back.
Chairwoman Maloney. The gentleman yields back.
The gentleman yields from Louisiana, Mr. Higgins, is now
recognized. Mr. Higgins.
Mr. Higgins. Thank you, Madam Chair, and I respect your
endeavor through the years in support of the ERA, and I respect
my colleague, Mr. Connolly's, position. Let me attempt to
interject a reasonable proposal that perhaps could be embraced
by both sides of the aisle. Let's begin with the Civil Rights
Act of 1964, which banned employment discrimination on the
basis of race, color, religion, sex, and national origin.
Section 1 of the Fourteenth Amendment, 1868, states, ``All
persons born or naturalized in the United States and subject to
the jurisdiction thereof are citizens of the United States and
of the state wherein they reside. No state shall make or
enforce any law which shall abridge the privileges or
immunities of citizens of the United States, nor shall any
state deprive any person of life, liberty, or property without
due process of law, nor deny to any person within its
jurisdiction the equal protection of the laws.'' The text of
the Equal Rights Amendment, Section 1, a significant section,
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.''
Now, you will see a repetitive theme here. It is the
endeavor of our country, as we move forward with our journey as
a Nation, to embrace the rights and protections of every
American citizen, indeed of every child of God, that lives upon
American soil, and we support that. In 1972 and in 1976, with
slight variance, 80 million Americans voted in the Presidential
elections. The average age of voters at the time was 44 years
old. The 1976 Presidential election, the era of the ERA, that
was 45 years ago. The average age of voters was 44. That means
1976 voters would be 89 right now. The average life expectancy
in America was 79.
It is the reality, to my colleagues on both sides of the
aisle, that the Americans that had an opportunity to vote in
the sovereign states, and we are a representative republic of
50 sovereign states, those Americans that had the opportunity
to vote for ratification of the ERA have mostly passed on to
their final reward. Now, may I submit to you that, reflective
of, you know, my own perspective, I am the seventh of eight
children. I have six sisters. I have three daughters, two
living, and I have an amazing wife, and let me just say that I
support the Equal Rights Amendment. I don't have a problem with
it. It is a bit repetitive to existing law, but OK, you know,
the women of our country deserve this message of respect and
for it to be permanently etched in our founding document.
My father told me long ago when I was just a young lad, he
said, son, the wisest words ever assembled are ``yes'' and
``ma'am.'' You save a lot of trouble during the course of your
life if you say ``yes, ma'am.'' So I say to the ladies present
and to our good chairwoman, yes, ma'am, move forward by all
means with the Equal Rights Amendment. But from the words of
Ruth Bader Ginsburg, let me encourage you to consider her words
in 2020: ``I would like to see a new beginning,'' Ginsburg told
an audience at Georgetown University Law Center. ``I would like
to see it start over regarding the ERA.'' In 2019, she said,
``I hope someday it will be put back on the political hopper,
starting over again, collecting the necessary number of states
to ratify it.'' That was in 2019.
May I submit to you, do it right. Say ``yes, ma'am'' to
this generation of women from sea to shining sea. Give them an
opportunity to vote, to ratify the ERA. May I submit that if
the ERA was resubmitted to Congress, it would pass by a wide
bipartisan margin. And if presented to the states for
ratification, I propose that all 50 states would ratify the
ERA, and it would be done now with voters that live now. Do it
right. You want to pass the ERA? By all means, move forward. I
will support it. If my daughters support it, my wife supports
it, and my sisters support it, then who am I to stand in the
way? I would support it, but do it right.
Madam Chair, I yield.
Chairwoman Maloney. The gentleman yields back. The
gentleman from Maryland, Mr. Raskin, is now recognized. Mr.
Raskin.
Mr. Raskin. Madam Chair, thank you very much. I am
delighted to hear my friend from Louisiana speak in strong
favor of the Equal Rights Amendment, which I think probably is
a good harbinger for our amending the Constitution this
century. So just a question of exactly when and exactly how, in
response to requests for guidance on January 6 last year, the
DOJ Office of Legal Counsel--OLC--issued an opinion in response
to a request from the National Archives and Records
Administration on the ERA. And this OLC opinion concluded the
archivist could not publish the ERA because the time limit had
passed, and the archivist has stated that this OLC opinion
prevents him from certifying and publishing the ERA.
So, Professor Nourse, I want to ask you about the validity
of this 2020 OLC opinion from the last Administration and the
role of the executive branch in the constitutional amending
process. First of all, as a general matter, are OLC opinions
binding precedent like a decision of a Federal district court
or the U.S. Supreme Court?
Ms. Nourse. No, they are not binding.
Mr. Raskin. And are there situations in which OLC opinions
are actually withdrawn, or modified, or reversed? And if so,
what are the circumstances under which a prior OLC opinion
might be changed or withdrawn?
Ms. Nourse. Well, yes. There is a very famous instance
where an OLC opinion appeared to endorse torture, and a
subsequent Administration withdrew it. In this case, the OLC
opinion actually contradicts prior OLC opinions. The Trump
opinion contradicts some prior opinions from earlier.
Mr. Raskin. I got you. So there is nothing unusual at all
about changing or reversing a flaw to OLC opinion when one
Administration looks back and finds legally unsound reasoning
underlying a prior one, especially when the prior one itself
was a reversal of a prior opinion that came to that
Administration.
Ms. Nourse. That is correct.
Mr. Raskin. So let's come back to the substance then,
Professor Nourse. In your opinion, is the 2020 OLC opinion
legally sound?
Ms. Nourse. No, and why not? Because it is inconsistent
with the Supreme Court's decision in Coleman v. Miller. It
purports to bind Congress to the deadline in a way that is
inconsistent with the Supreme Court's opinion, suggesting that
this is a political question that the Court cannot opine on,
and that is my position.
Mr. Raskin. All right.
Ms. Nourse. I don't think that the Court would take this.
Mr. Raskin. Well, if it is inconsistent with prior Supreme
Court precedent, is it inconsistent or consistent with
President Biden's statements on the ERA?
Ms. Nourse. It is inconsistent with President Biden's
statements on the ERA. He has endorsed the ERA. He supports the
proposition of sex equality. I have worked with him since 1990
on this. I know that is correct. I am sure that the Justice
Department knows about this. They can, in fact, withdraw this
opinion consistent with his policy.
Mr. Raskin. So it seems to me that the OLC should rescind
the prior Administration's opinion, which is what is blocking
certification of the ERA today. Can you also clarify the OLC's
authority in the case of the ERA? Article V of our Constitution
gives power to which branches of government over the
constitutional amending process?
Ms. Nourse. Well, thank you for that because the OLC, in
this case, really has no authority because the President is not
part of the amendment process. We heard from Mr. Connolly that
Article V starts with Congress. It is about Congress'
authority.
Mr. Raskin. Yes. So not only is it not a controlling legal
authority in the sense of a Court precedent. It is not even
really persuasive authority because it is just one person in
the last Administration in a different branch of government
opining as to what the Congress of the United States should do,
right?
Ms. Nourse. That is correct. I run the Center on
congressional Studies, and I am delighted to hear that Congress
might be asserting its authority aggressively here. I don't
believe that the OLC has authority to determine Congress' rules
or proceedings under Article I, Section V, or any other
provision of the Constitution.
Mr. Raskin. Yes. By the way, do you agree with the dogma
that we have three co-equal branches of government? I mean,
``co-equal,'' first of all, is not even a word. It is like
``extremely unique'' or something like that. But the
President's role is to take care that the laws are faithfully
executed. The laws are passed by the Article I branch, the
primary and predominant branch of government. As Madison put
it, we are the lawmaking branch. We have the power over the
amending process just like we have the power to regulate
domestic and interstate commerce. And, of course, the Court's
role is just to adjudicate over the interpretation of statutes
in the Constitution. But would you agree that Congress is
really who is driving the train in America?
Ms. Nourse. Absolutely. Hallelujah. Article I is Article I
for a reason. We have forgotten this because we think that the
Supreme Court is supreme, and, in fact, it was Article III for
a reason. The Court arrogated to itself non-textual authority
to reject laws. We are used to that now, and we believe we are
a better country for it.
Mr. Raskin. Well, and some people think the judiciary is
supreme, and some people think that the President is a king,
and so we have to combat both of those dogmas and ideologies. I
thank you for your indulgence. Madam Chair, I yield back to
you.
Chairwoman Maloney. The gentleman yields back. The
gentleman from South Carolina, Mr. Norman, you are now
recognized.
Mr. Norman. Thank you, Madam Chairman. Let me just
emphasize what Ranking Member Comer mentioned, that, you know,
we have had 20 requests to have hearings on things that are
really a train wreck in this country. Look at our immigration
where people are coming across this border. Women are getting
raped. Children are getting raped. The drugs coming across. We
are experiencing inflation where everyone is paying 42 percent
higher in gas prices that is so unfair, particularly for those
on fixed incomes. We have an Administration that is tone deaf
to generals who have criticized the current Administration in
rank and conspired with foreign countries. We have asked for
hearings on things like this because last nine months have been
an absolute train wreck. But be that as it may, we will
continue to ask for hearings that we think are current.
I thank each one of our witnesses. You know, I listened--we
have seven--six of the seven. Let me just describe what I have
listened to, and I am not going by my script. This is the
description that six of the seven have described the country
that we live in now. We live in a country where it is equal
opportunity for women as well as equal pay. We live in a
country where there is no gender equality. We live in a country
that is deeply flawed. I guess the question was asked why does
America hate women. We live in a country where gender-driven
injustices exist. We live in a country that Congress has failed
us. We live in a country that, one of the witness says, ``I am
afraid of being killed.''
You know, you wonder why people from 152 countries are
trying to get into America and they are not leaving. I wonder
what your testimony would be on the women that are being raped
that are coming into this country. I wonder what your testimony
would be with the Uyghurs in China who wanted freedom and are
now incarcerated. I wonder what your testimony would be with
the Kate Steinles that are getting gunned down by illegals. And
I wonder what your testimony would be over the 22 cities that
have been destroyed and the businesses that have been
destroyed.
But this one particularly stood out, Ms. Milano, and thank
you for bringing up the Freedom Caucus. I am a proud member
because we promote freedom. But let me quote what you said:
``Discrimination exists in half of the population of America.''
Can you name me three things good about this country?
Ms. Milano. Of course I can, but before I do that, I would
like to address a couple of issues, one of which you mentioned
rape. I have been sexually abused. I would like the same
constitutional equality as my abuser. Second of all, everyone--
--
Mr. Norman. My time is running out. I need three things
good about America that none of the six mentioned. Just three
things that are good about this country.
Ms. Milano. Freedom of speech.
Mr. Norman. That is a good thing?
Ms. Milano. Freedom of choice. Yes.
Mr. Norman. To kill a child.
Ms. Milano. I believe that abortion is healthcare.
Mr. Norman. Really?
Ms. Milano. I do.
Mr. Norman. Should double homicide be eliminated from the
books if----
Ms. Milano. I would also like----
Mr. Norman. Hold on. Let me just ask a question, Ms.
Milano.
Ms. Milano. OK.
Mr. Norman. I listened to you. If a woman and a child are
murdered today and the child dies, it is double homicide.
Should that go off the books?
Ms. Milano. The Fourteenth Amendment creates a
constitutional right to abortion. Do you want to repeal the
Fourteenth Amendment? I do not.
Mr. Norman. Which positives? You named freedom of speech.
What are your other two?
Ms. Milano. Freedom of speech. Freedom of choice.
Mr. Norman. Freedom of choice.
Ms. Milano. Opportunity for people that come to this
country----
Mr. Norman. Thank you for at least.
Ms. Milano [continuing]. As immigrants. Migration is a real
thing, and because of the government's inaction on climate
change, it will continue to happen more.
Mr. Norman. OK. So those are three good things. And then if
this is passed, ``sex'' could be interpreted. You mentioned you
were raped. Sex would be interpreted by the courts to mean a
person's sexual orientation or gender identity, implicating
faith-based nonprofits, women and children's privacy and
safety, and women's sports rights. Is this something you agree
with? Does this make our children safer by being identified as
a man or a woman and going to a woman's bathroom?
Ms. Milano. So if----
Mr. Norman. ``Yes'' or ``no.'' My time is up.
Ms. Milano. If a state has a compelling interest----
Mr. Norman. ``Yes'' or ``no.''
Ms. Milano [continuing]. In maintaining a specific sex-
based distinction, for example, limiting a battered women's
shelter to women----
Mr. Norman. You are not answering my question, ma'am.
Ms. Milano [continuing]. To protect them from continued
trauma, the ERA will not affect it.
Mr. Norman. Madam Chair. My time is up. Thank you.
Chairwoman Maloney. The gentleman's time has expired, and
he yields back. But I want to briefly address his claim that
this committee is not doing enough bread-and-butter oversight.
The truth is that this committee is actively engaged in
oversight over waste, fraud, and abuse, especially in the
Subcommittee on COVID-19 on the contracts that they have let
and on the whole operation and looking at all of that. And just
this week, we sent a bipartisan letter to the IG of the
National Archives and Records Administration asking for a
review of the unacceptable backlog of veterans' records at the
National Personnel Records Center. And earlier this month, we
had a hearing on FEMA and overseeing the Administration's
response to Hurricane Ida. And in the last two months, we have
conducted a number of multiple member briefings on Afghanistan,
a bipartisan briefing, classified, with the Administration, and
we have one set up coming up shortly, and a bipartisan letter
to the FBI on the handling of ransomware attacks, and the
oversight of the treatment of Haitian asylum seekers. And these
are just some of the areas that we have worked on.
Just last week, we had an oversight of the Postal Office
and Postal Service, and we are coming up with a historic
hearing, I believe, oversight of what will be the first time
that CEOs of all the major fossil fuel companies--Exxon,
Chevron, BP, and others----
Mr. Norman. Madam Chairwoman?
Chairwoman Maloney.--will be here before our committee. So
at this point----
Mr. Norman. Can I ask----
Chairwoman Maloney.--may we get back to the item that we
are----
Mr. Comer. Point of order, Madam Chair. Point of order.
Chairwoman Maloney. We are getting back to----
Mr. Comer. Point of order.
Chairwoman Maloney.--recognizing the gentlelady----
Mr. Comer. Point of order, Madam Chair.
Chairwoman Maloney. Explain your point of order.
Mr. Norman. Since you mentioned me by name, can I have a
point of order and ask a question of you?
Chairwoman Maloney. Sure.
Mr. Norman. You have named some hearings, but none of which
addressed any of the 20 letters that he mentioned. Will you
agree now to let us hold at least one or two hearings on
specifics that Chairman Comer has asked for?
Chairwoman Maloney. We will take it under consideration.
Mr. Norman. That means ``no.''
Chairwoman Maloney. And, Mr. Comer, you wish to be
recognized?
Mr. Comer. Madam Chair, I just wanted to fact check that
about the level of oversight this hearing has provided over the
past nine months. The Lugar Center gave the Oversight Committee
and ``F'' grade on oversight. So we have a lot of crises in
America right now, and I believe we could be doing more in this
committee to provide oversight to the American people for
exactly what created these crises----
Chairwoman Maloney. Thank you.
Mr. Comer [continuing]. And how they can be solved.
Chairwoman Maloney. OK. Thank you. Ms. Bush, you are now
recognized for five minutes.
Ms. Bush. Thank you. And let me first start by saying, Ms.
Milano, I apologize that you had to endure such a cruel,
callous, and sexist question line presented by my colleague.
St. Louis and I thank you, Madam Chair, for convening this
hearing. Equal rights for everyone are still not codified in
this country, and it shows. Ratifying the ERA after over a
century of struggle will help advance social, economic, and
racial justice. It will improve the lived experiences for black
women who are disproportionately affected by inequality and
inequity in this country. It is not surprising that the
slaveholders--all white men--who wrote the Constitution did not
write in equal rights across genders, and it is not surprising
that their disregard for gender equity has disproportionately
harmed black women, brown women, indigenous women, and trans
women.
In my district and in districts across the country, black
women are subjected to harmful policies that make us more
likely to be evicted, be underpaid, die during childbirth, lack
access to abortion, and be victims of domestic violence, sexual
assault, and police brutality. Notice I said ``and,'' ``and,''
``and,'' and ``and.'' In 2020, four black women and girls were
murdered per day in our country. Racial inequality is a crisis
in this country, and it is crucial we recognize and acknowledge
the impact that ERA would have on our community.
Ms. Jenkins, passing the ERA is a racial justice issue. How
would it help women of color, specifically black women, if the
ERA were ratified?
Ms. Jenkins. Thank you so much for your question, and for
your experience, and for your bravery, and your support of the
Equal Rights Amendment. I think what we saw during the pandemic
was something that most of us thought was true, but some of us
didn't want to face and some of us still don't want to face,
and that is the extraordinary gap in access to absolutely
everything this country says that it gives to its citizens. And
we found out who the essential workers were, and we found out
what the essential workers were, and we found out that most of
the essential workers were black women, women of color,
underpaid, raising families, trying to feed their children,
trying to give them shelter, and extraordinarily more and more
difficult to do so. In some cases, we see that this discrepancy
in the work force is that women have not been able to go back
to work because they are taking care of their children. And in
some cases, black women, women of color, have to go back even
though they have children because there is no way, you know, to
take care of the food and the shelter.
Ms. Bush. Right.
Ms. Jenkins. So we have this crisis in this country. You
know, one of the things I wake up in the morning and I hear
this: 250,000 women went missing last year. A hundred thousand
of those were women of color or trans women. Is anybody looking
for them? And the answer that we are afraid of is that, no,
they are not because women are not valued and because women of
color and black women are not valued. The Equal Rights
Amendment is what we need to finally establish, you know, that
we are all full citizens of this country.
Ms. Bush. Right.
Ms. Jenkins. And that we all deserve the rights and the
protections and the recourse.
Ms. Bush. Yes.
Ms. Jenkins. And so this is what we believe will do it.
Ms. Bush. Thank you.
Ms. Jenkins. The Constitution is the problem. The
Constitution has to be fixed. Nothing else will do it.
Ms. Bush. Thank you. Thank you. Thank you. Thank you for
your comment, your response. It is also not surprising that
women of color and clear women of color are leading the fight
for gender equity. Today black and indigenous women face higher
rates of domestic violence than any other groups. We see
achieving gender equality, which you just talked to, we see
achieving gender equality as a fundamental piece of achieving
justice and ensuring our very survival at a moment when LGBTQ+
community women, the black community, are under attack like
never before. We must advocate for policies that protect our
rights and our dignity with the force of law.
Ms. Salcedo, I was struck by your written testimony that
without the ERA, the Equality Act may lack the constitutional
standing to effectively protect trans women and trans women of
color. So why do we need ERA in addition to, like, laws like
the Equality Act to protect trans women of color in our
communities?
Ms. Salcedo. Thank you so much. The ERA is very clear. I
mean, we need constitutional protection for all peoples, and,
you know, the Equality Act, unfortunately, does not do that.
The Constitution will do that when the ERA, it is there.
Ms. Bush. Thank you, and I yield back.
Ms. Salcedo. Thank you.
Chairwoman Maloney. The gentlelady yields back.
And the gentleman from Pennsylvania, Mr. Keller, is
recognized for five minutes. Mr. Keller.
Mr. Keller. Thank you, Madam Chair, and I would like to
thank all of our witnesses for taking time to be here today.
First and foremost, let me state that every American
deserves to be treated equally. Putting aside the arguments for
or against the Equal Rights Amendment, or the ERA, the
ratification deadline for this measure ended over four decades
ago. It seems like we are back in 1979 under the Carter
Administration when the ratification deadline for the ERA
passed the first time. We were dealing with the same rising gas
prices, rising energy prices, rising inflation, and even
Americans were being held hostage. If this is the Democrats'
version of progress, Americans have clearly stated they want
none of it.
The ERA failed to be ratified in 1979 and then again in
1982 when Congress tried again and failed to extend the
ratification period. Americans know the ERA is as unnecessary
today as it was 40 years ago. Our citizens are protected under
the umbrella of existing laws that shield them from sex
discrimination or any kind of discrimination, including the
Fourteenth Amendment, the Nineteenth Amendment, the Equal Pay
Act of 1963, and the Civil Rights of 1964. These provisions
already make it illegal for employers to discriminate based on
sex. In January 2020, more women held positions than men in the
paid work force. However, 55 percent of all jobs lost during
the pandemic had been occupied by women. So I have a question,
Ms. Stepman. Why are women-held positions disproportionately
affected by COVID-19?
Ms. Stepman. I think that is a question you should take up
with Randi Weingarten, who is the head of the National Teachers
Association. Look, we have heard a lot about European countries
in this hearing generally, usually comparing America dis-
favorably to them. But in most European countries, schools
reopened in person just after a matter of weeks, you know, 6,
8, 12 weeks, meaning they opened in summer or fall of 2020.
American schools in many states remain closed to in-person
learners for far longer, to the extent that even just a couple
months ago, many families were dealing with the reality of
school closures and having to, what Mary Katherine Hamm, as she
delightfully puts it, Zoom butler their children at school. So
I suspect that this is one of the reasons that women
disproportionately had to leave the work force during the
pandemic, because as much as many try to fight against it,
women still choose to take more of the childcare
responsibilities and family responsibilities in the home. And
so disproportionately, they decided to leave the work force
when their children couldn't attend school. So, again, I
suggest you take that up with Randi Weingarten.
Mr. Keller. Thank you. Thank you for that answer. Looking
at Pew's recent survey of American fathers and mothers, it
states that 82 percent of fathers report that they prefer to
work full time, while only 51 percent of mothers say the same.
What might this tell us about the choices and preferences made
by men and women? Any thoughts on that?
Ms. Stepman. Sure. Men and women, on aggregate, have
different choices and preferences. This is not discrimination.
I reject the idea that because a disparity exists,
automatically that means that there is a discrimination at play
here. Unfortunately, the ERA, I think, could potentially lead
to us taking some of these disparities as discrimination, which
would mean that the ERA would be set against the choices of
actual American women about how they want to balance their
lives, their careers, and their families. That is not progress
for women, in my book.
Mr. Keller. OK. Thank you. And, Ms. Stepman, how can
lawmakers help support women entering the work force or staying
at home with their children, or a combination of the two?
Ms. Stepman. Well, I mean, I am sure that is a much larger
subject than I can touch in a few seconds. But for starters,
just to return to the issue of schools for a moment, it would
provide them with better education for their children and
educational options for their children. States that provide
school choice, for example. In those states, during the
pandemic, families were allowed to use those programs to then
take their kids to the overwhelming majority of private schools
that opened last fall for in-person instruction. But in states
where those programs didn't exist, those opportunities didn't
exist. And, again, as we opened this questioning, those burdens
fell disproportionately on mothers, on women.
Mr. Keller. Thank you. And, Madam Chair, I do have a letter
here from Students for Life that I would like to submit as part
of the record.
Chairwoman Maloney. Without objection.
Mr. Keller. Thank you, and I yield back.
Chairwoman Maloney. The gentleman yields back.
The gentlelady from Florida, Ms. Wasserman Schultz, is now
recognized.
Ms. Wasserman Schultz. Thank you, Madam Chair, and thank
you so much for holding this incredibly important hearing. I
will just note that I feel quite certain that if white men in
this country faced the discrimination and inequality that women
across the country of all genders and races faced, that you
would see aggressive advocacy on the other side of the aisle in
support of the Equal Rights Amendment for men. And choice of
whether and where and when you work is just that. If you did a
survey and if you look at surveys, when women are asked if they
think that the Equal Rights Amendment should pass, they
overwhelmingly support it. I think that is important to note
for the record.
And constitutional amendments, Madam Chair, have always
served as a signpost for where society needs to go, and the ERA
is no different. Beyond clarifying our values, the ERA will
have a concrete impact on the most marginalized. There are two
major ways that the ERA will impact the legal status of women
and all marginalized genders: through litigation and
legislation. And first, I want to turn to litigation. Since
2016, there has been a steady rise in the number of Federal
pregnancy discrimination lawsuits, and the pandemic has only
accelerated this disturbing trend. As a mother of three
children, I was fortunate that I didn't face this kind of
workplace discrimination, but I know that compounding layers of
economic factors, racism in the workplace, and inaccessibility
of paid family and medical leave make many pregnant women
vulnerable to this unlawful treatment.
Ms. Smeal, it is good to see you and a hearty ``Go
Gators,'' I would say that since we share an alma mater. But is
it correct that the ERA could improve litigation outcomes for
sex or pregnancy discrimination cases?
Ms. Smeal. Absolutely. There is a Pregnancy Discrimination
Act, but it isn't as comprehensive as the Equal Rights
Amendment would be. And as we know, there is a lot of pregnancy
discrimination in employment.
Ms. Wasserman Schultz. And certainly increasing. Thank you.
And I want to drill down and explore how the ERA could affect a
specific legal claim in my home state of Florida. On the first
day of Pride Month, the Governor of Florida signed a horrendous
law banning trans girls from playing on sports teams with other
girls. Ms. Salcedo, as a trans woman and advocate for the trans
community through your organization, can you explain the impact
of this legislation on trans youth?
Ms. Salcedo. Thank you so much. I think, you know, this
type of legislation obviously denies the opportunities for
young people to participate and to just have the ability to
engage in sports and in the things that people need to
participate, particularly young people. It definitely devalues
their existence. So this type of legislation has continued to
really denigrate our community, and it is very damaging.
Ms. Wasserman Schultz. Thank you. Professor Nourse, how
might the ERA influence outcomes when judges review laws like
this transphobic sports ban given the decision in Bostock v.
Clayton County?
Ms. Nourse. Thank you for asking me that. The Supreme Court
decided a case called Bostock recently, in which the question
was whether Title VII covered transgender and sexual
orientation discrimination, and the Court said, as a matter of
statutory interpretation, that they were covered in Bostock.
But that is a statute. It is not the Constitution. And so the
Court has recognized the word ``sex'' for statutory
interpretation includes these categories, but it is not clear
that that would actually operate in the same way
constitutionally. The Court has not actually addressed that. So
as far as a state law that discriminated against transgender
folks, the Equal Rights Amendment would allow challenges to
that law based on the interpretation of the word ``sex'' in an
opinion by Justice Gorsuch for a majority of this Court.
Ms. Wasserman Schultz. And we cannot afford to let Florida
put the transgender community in danger for 1 second longer. It
is clear that without the added protections of the ERA, we
can't be certain that transphobic laws like this will be
repealed by our court system. I want to just get a question in
with Senator McClellan because, in addition to litigation, the
ERA will enable legislatures to enact, and governments to
enforce, more robust laws that protect women and other
vulnerable groups. So, Senator, how would an equality provision
in the Constitution give legislators like yourself a new
constitutional hook for legislation that protects women and
other vulnerable groups?
Ms. McClellan. Thank you for that question because it gives
me an opportunity to address what we have heard over and over
about choices that women make that impact the wages that they
receive and also whether they stay in the work force. When you
are not allowed sufficient time to recover from childbirth, or
when the father is not allowed sufficient paternity leave to
care for a child or to stay home to take care of a child when
school is closed, or when you don't have childcare, then the
ERA gives extra protections to allow state legislatures or
Congress to address those through paid family medical leave
laws, pregnancy discrimination laws, or similar laws that give
women who become mothers actual choices, and not choices that
are limited by their employer, or a state, or a policymaker's
view of them as the primary caregiver in a family, even if in
that family they choose that it be the father's role.
Ms. Wasserman Schultz. Madam Chair, I think we have made
clear why we need a constitutional protection for equality
established for women, and I appreciate your decades of support
and leadership on this issue. I yield back the balance of my
time.
Chairwoman Maloney. The gentlelady yields back. The
gentleman from Georgia, Mr. Clyde, is now recognized. Mr.
Clyde.
Mr. Clyde. Thank you, Madam Chair. It is becoming
increasingly common for this committee to hold sham hearings on
legislation that has already passed the House. We did it three
weeks ago with the abortion-on-demand-until-birth act, and we
are doing it again today. I wonder why this is. Oh, that is
right. It is because holding these sham hearings is nothing
more than an unapologetic ploy to give the media something to
talk about other than the Democratic Party's policy failures
and lack of action when it comes to agreeing on how to govern
in the best interest of the people. We are facing an inflation
crisis, and President Biden and his allies in Congress are
carelessly adding fuel to the inflationary fire by advancing
their $1.2 trillion--only 99 percent infrastructure--bill and
$4.3-trillion-big-government-socialist spending package.
Hearings such as the one we are holding right now on ERA are
neither productive, nor are they applicable to the current
issues facing our country. Simply put, they hold as much weight
as wearing a politically tailored outfit to a star-studded
affair.
Over the past year, the so-called Equal Rights Amendment
has become both a ridiculous fashion statement and a battle cry
for many who fail to recognize the progress the United States
has made since the 1970's, but this does not change the fact
that the ERA is no longer necessary or applicable. The truth
that many of my colleagues have ignored is that men and women
are already considered equals under the Constitution. In fact,
in many states, women are rightfully offered extra protections,
such as sex-segregated hospital rooms, prisons, and shelters,
protections the ERA would jeopardize.
My first question is for Ms. Stepman. Thank you for being
here today, ma'am. I appreciate your testimony.
Ms. Stepman. I am honored to be here. Thank you.
Mr. Clyde. Would you please share briefly with us how the
ERA would affect women's safety and privacy through elimination
of sex-segregated facilities?
Ms. Stepman. Sure. I would be happy to do that. I have
already mentioned the effect on women's prisons----
Mr. Clyde. Right.
Ms. Stepman [continuing]. Where men and women potentially
would have to be integrated within prisons and even prison
cells when those cells include more than one person. There are
many other consequences, though, if we require the law to be
completely blind to the fact that sex differences exist. I also
mentioned pat downs in the airport, bathrooms, locker rooms,
any kind of facility. Any kind of public school, whether that
is on the university level or the K-12 level, has separated for
boys and girls any sports teams connected to those public
schools, which we were already having this conversation. But
men jump 25 percent higher, throw 25 percent further, run 11
percent faster, accelerate 20 percent faster. They punch 30 to
162 percent harder, and they are overall 30 percent stronger
than females who are pretty much the same size. So this is two
similarly sized females.
You know, the ERA in Massachusetts, the state-level ERA,
has already made a ruling the boys must be admitted to girls'
teams. And, again, we are no longer just talking about a small
percentage of people who are born one sex and identify as
another and who may undergo various kinds of treatments to
suppress some of the effects of testosterone. Now we are just
talking about regular boys, males, who would then be admitted
to compete against women. These are opportunities that women
and girls, you know, cherish and that we have won over time.
And I really think that we are downplaying how many times in
our everyday lives as women we rely on the law to allow us, for
example, for privacy or safety reasons, to separate ourselves
from men temporarily.
Mr. Clyde. Absolutely, and I would never want to take that
away from women. That would be unjust to do that. As a
followup, how would this legislation affect life-affirming
healthcare facilities and physicians with religious objections
to abortions? Would it have an effect there?
Ms. Stepman. So the ERA's effects on abortion law, there
has been quite a debate. There are some proponents who say it
does not affect abortion law at all. That hasn't been true in
the states. Both New Mexico and Connecticut with state-level
ERAs have required under those ERAs that taxpayer funding be
applied to abortion. And I am not specifically familiar with
any cases on position conscience rights, but generally, the ERA
could provide an alternative basis to continue having a right
to abortion in the Constitution. And, in fact, most pro-choice
groups acknowledge that. For example, NARAL has acknowledged
that on their website and has cheered the ERA for that reason.
Mr. Clyde. OK. Thank you. So not only would passage of ERA
impose dangerous policies that would strip women of necessary
protections and force taxpayer funding of abortion. It would
also circumvent the legitimate constitutional amendment
process. Differences of opinion and policy aside, the 1972
Equal Rights Amendment deadline expired nearly four decades
ago. Legislators are attempting to resurrect a dead amendment.
Even the late liberal icon, Justice Ruth Bader Ginsburg, noted
that the only way the ERA can be added to the Constitution
would be to introduce it anew. Even having been a supporter of
ERA, Ginsburg recognized there was no path by which you can
move forward while simultaneously ignoring the fact that the
ratification deadline passed more than four decades ago. Even
if supporters of this amendment sincerely believe it was still
necessary, I imagine they would be willing to follow the
guidelines prescribed in the U.S. Constitution, but they are
not. Instead, Democrats are choosing to shoehorn through
Congress a constitutionally questionable measure.
To that end, Madam Chair, I once again implore you to use
this committee's limited time and resources to gather expert
knowledge on issues that are both current and within the
committee's jurisdiction. To do anything else is a shameful
waste of our constituents' tax dollars----
Chairwoman Maloney. The gentleman's time has expired.
Mr. Clyde [continuing]. And only allows for more White
House policy failures without proper committee oversight. And
with that, I yield back, Madam.
Chairwoman Maloney. The gentleman yields back.
The gentlewoman from California, Jackie Speier, is
recognized for five minutes.
Ms. Speier. Thank you, Madam Chair. I would also like to
remind Mr. Clyde that it was Antonin Scalia who said when he
was asked does the Constitution require discrimination based on
sex, he said no. But he then further said, ``The Constitution
does not prohibit discrimination based on sex,'' and he
implored the legislature to take action to provide that kind of
protection and anti-discrimination language in the
Constitution. Again, we are one of a handful of countries in
the advanced world that do not have this protection for women.
I want to thank all the panelists again for their advocacy
and their great work. This week marks the fourth-year
anniversary of the Me Too movement in addition to being the
month in which we observe the tragedy of domestic violence in
our country. In 2017, our witness, Alyssa Milano tweeted, and I
quote, ``If all the women who have been sexually harassed or
assaulted wrote `Me Too' as a status, we might give people a
sense of the magnitude of the problem.'' Since then, the
phrase, originally founded in 2006 by activist Tarana Burke,
has been shared millions of times all over the world where Me
Too survivors declared ``Time's Up,'' for perpetrators who
abuse with impunity. We had members here in Congress who
engaged in sexual harassment and who are now being held
accountable, and new laws are on the book.
All of these people have demanded safety in their
workplaces, schools, homes, and in the military, yet four years
later, we still face an epidemic of violence against women.
Every two minutes, another American is sexually assaulted, and
more than three women are murdered by their partners in the
United States every day. Constitutional scholars, such as Dean
Chemerinsky, believe that the Equal Rights Amendment will have
some of its greatest impact on violence against women.
Ms. Nourse, can you elaborate on how the Equal Rights
Amendment will strengthen the rights of survivors by providing
a constitutional anchor for gender equality, and what are some
of the examples of the ways the courts have not respected the
rights of victims?
Ms. Nourse. Thank you very much for that question. In
United States v. Morrison in 2000, the Supreme Court struck
down Congress' bipartisan attempt to give rights to sexual
assault survivors and domestic violence survivors to sue the
perpetrators of that abuse. Why? Because the law is unequal.
State laws remain unequal. And so what they have done is the
Court has said, no, this is unconstitutional. So what the Equal
Rights Amendment would do is provide a way for Congress to re-
enact laws like this and provide a firm constitutional basis
for it. Right now if Morrison is the law, Congress has no
power. Under the Fourteenth Amendment, this was an explicit
Fourteenth Amendment holding and an explicit Commerce Clause
holding.
What happens is that under Title VII, under a number of
statutes, your rights end with commerce, OK? So if you are out
of the workplace, if you are a gymnast, if you work in the gig
economy, Title VII is a very limited remedy. And the problem is
that the Court has said that your rights are fine in
employment, but once you get outside of employment, I mean,
sexual harassment occurs in all sorts of places in our society
and sexual assault does as well. Look at the members of the
military. All they want to do is serve their country. They
can't sue anyone for what happened. They get very little
protection from the military. We have been trying to do with
that for decades.
Ms. Speier. That is right.
Ms. Nourse. So this would allow much greater protection for
women because Congress could then enact laws. The Supreme Court
says you have no power to. You don't have to believe what
Justice Scalia said or what Justice Ginsburg said about the
Equal Rights Amendment. All you have to do is look at United
States v. Morrison. That is one case. In Jessica Lenahan's
case, they said, well, you know, a domestic violence protective
order says, oh, you must arrest. Well, Justice Scalia in
another opinion said, oh, that doesn't really mean you have to
arrest. There is always discretion not to arrest, so you have
no rights with respect to that.
There is impunity by state officials. When I did research
in my practicum, I found out that a third of the cases brought
under the original VAWA civil rights remedy were state police
officers, prison guards, other officials who actually committed
sexual assault or harassment of individuals under their care
protection. That should be a violation of the Fourteenth
Amendment, but why can't you sue them? Qualified immunity, so
there is no recourse. ERA would fix that.
Ms. Speier. Thank you very much, Ms. Nourse, and thank you
for your legal scholarship as well. My time has expired, and I
yield back.
Ms. Wasserman Schultz. [Presiding.] Thank you. The
gentlelady yields back.
Mr. Comer, you are recognized for five minutes.
Mr. Comer. Thank you, Madam Chair. There have been recent
references to Ruth Bader Ginsburg's comments. Madam Chair, I
ask for unanimous consent to add to the record Justice
Ginsburg's comments suggesting that she believes the 1982
deadline should be considered binding, and that she would
``like to see a new beginning for ERA ratification.''
Ms. Wasserman Schultz. Without objection.
Chairwoman Maloney. [Presiding.] Without objection.
Mr. Comer. Thank you. And I, again, want to thank the
witnesses for all being here today. Ms. Stepman, would you like
to elaborate on the rescissions of the ERA by the states in the
past?
Ms. Stepman. I would. Thank you. So overwhelmingly, the
theory that ERA proponents are advancing, the three-state
solution, this modern ratification, I do think contradicts the
spirit of Article V at the most basic level, right? The reason
that we have all of these very difficult procedures--three-
fourths of the states, two-thirds of both houses of Congress--
is to ensure the overwhelming popularity of whatever we are
adding to the highest law of the land. And the theory they are
advancing will have no time limits and no rescission. And, in
fact, you mentioned Justice Ginsburg. In those same remarks and
in some remarks in 2019, she pointed out the unfairness of
that. If you are going to extend the timeline for ratification
indefinitely, then it is completely unfair not to allow states
to change their minds before the amendment is ultimately
passed, ratified, and inscribed in the Constitution.
But fundamentally, we haven't really had a conversation
about all the consequences that we are talking about today with
the ERA because we have had this short-circuited three-state
ratification procedure. As I mentioned in my initial testimony,
62 percent of our electorate was either not of age to vote or
not even born--for example, myself--not even born the last time
we had this conversation about the consequences. And indeed,
that bipartisan sort of consensus about the ERA and its
consequences dissolved exactly because we had a vociferous
public debate in which lots of different states and all of our
electorate were able to weigh in on those consequences. And
American women, who make up the majority of voters, were able
to weigh in on whether or not they want to be treated exactly
like men in every single circumstance. Unfortunately, we
haven't had the opportunity to have that kind of debate because
most of America still thinks this died in the 70's.
Mr. Comer. Would you agree, Ms. Stepman, before the COVID-
19 pandemic, that women were doing pretty well in the United
States by several metrics, including low unemployment, wealth,
and political power?
Ms. Stepman. That is correct. Before the pandemic, women
not only owned the majority of wealth. We get the majority of
both undergraduate and graduate degrees. We had the lowest
unemployment rate since we started recording female
unemployment all the way back in the 1950's in 2019. So to
present women as though they are second-class citizens in the
United States, I just truly and deeply disagree with that
presentation. You know, I am not a second-class citizen because
UVA can have a sorority on campus. That does not, to me, rise
to the level of second-class citizenship or discrimination.
What we are talking about is the law recognizing a small number
of instances in which those differences really do matter. And I
think that recognizing those differences is very, very
important to the freedoms and opportunities and safety that
American women rely on.
Mr. Comer. And I agree with that, and that goes along with
my point. We, the Republicans on this side of the aisle, we
have been very critical of the Democrat shutdowns during COVID,
and all the metrics and data that I have looked at show that
they adversely affected women more than men. Can you describe
how the Democrat-led COVID-19 pandemic shutdowns of businesses
and schools have harmed women?
Ms. Stepman. Absolutely. As I mentioned before, I think the
single biggest factor in that disparity is likely the fact that
schools remain closed long, long after we knew. We have one big
positive thing, right, in this pandemic, this horrible pandemic
which I think is the worst in 100 years. One blessing that we
have had is that it largely spares young children. And indeed,
other countries have recognized that, which is why most
European countries went back to school in May 2020. So I think
that has been the single biggest factor in holding women back
during this pandemic has been the lack and availability of
open, in-person public schooling.
Mr. Comer. I agree completely. Thank you, and, Madam Chair,
I yield back.
Chairwoman Maloney. The gentleman yields back.
The gentlelady, Ms. Pressley, is now recognized for five
minutes. Thank you.
Ms. Pressley. Thank you, Chairwoman Maloney, for today's
hearing on the need to ratify the Equal Rights Amendment. Many
would have us believe that the ERA has always been a battle led
and fought by white women, that it has always been a white
woman's battle for white women's gain, but as is so often the
case, this is a false narrative. We have seen this throughout
history, an effort to erase the women of color who have served
as trailblazers, table shakers, and justice seekers in the
fight for gender equality. So allow me to bring my ancestors
into this room.
More than 70 years ago, black suffragist, civil rights
activist, and first president of the National Association of
Colored Women, Mary Church Terrell, testified before this House
in support of the ERA. In 1970, Pauli Murray, a revolutionary
black queer lawyer and scholar, testified before the Senate
Judiciary and reminded legislators that black women had the
most to gain by passing the ERA. She famously said, ``I suggest
that what the opponents of the amendment fear is not equal
rights, but equal power and responsibility.'' Now, Senator
McClellan, you also mentioned that women of color have the most
to gain by achieving constitutional equality. Can you give us
some specific examples of what you mean?
Ms. McClellan. Yes, and thank you because, again, it gives
me an opportunity to address some misconceptions about why
women, and particularly women of color, have been
disproportionately impacted by the pandemic. Women of color
tend to be dominating professions that are essential workers
because for many years those were the only opportunities
available to those women, and there are generational impacts
because of that. Those women did not, in many cases, have
access to health insurance. They did not have access to
childcare. They did not have the same economic opportunities as
their male or white counterparts, and many of them, when they
got pregnant, were in jobs where they had to make a choice
between immediately returning back to work because they were
not given sufficient time off to recover or bond with their
child. And in many cases, if their husband was in the picture,
they were not granted enough time off to be the primary
caregiver. So these are all generational results that go back
to slavery and Jim Crow that have not been eliminated with a
magic wand just because Jim Crow laws ended. And the ERA will
allow Congress and states to pass laws to redress some of that.
Ms. Pressley. Thank you. And certainly we have seen those
inequities exacerbated during the pandemic since, again, many
of those essential and low-wage jobs are dominated by women of
color, frontline jobs, who put themselves at risk and could not
Zoom into work. I want to turn to a particular right that has
been the center of a lot of discussion in Congress, and the
Supreme Court, and many states throughout the country, and that
is the right to safe and legal abortion care. Across United
States, pregnant people of color experience systemic health
inequities as a result of centuries of policy violence,
including barriers to health insurance, greater stigma, and
heightened stress caused by racism. This is certainly true in
my district, the Massachusetts 7th, and for many others around
the Nation. Senator McClellan, can you explain the role
abortion care plays in advancing health and economic equity for
historically marginalized communities and how you have seen
that play out for your constituents in Virginia specifically?
Ms. McClellan. Yes. The Supreme Court has long recognized
that reproductive freedom is central to one's equality. As the
Court ruled in Planned Parenthood v. Casey, the ability of
women to participate equally in the economic and social life of
the Nation has been facilitated by their ability to control
their reproductive lives. Abortion is healthcare, and the ERA
is about gender equality in access to healthcare, and the
workplace, and in school, and every aspect of Federal and state
law and policy. And, in particular, black women have been
disproportionately discriminated on the basis of pregnancy, and
the ERA would also help with that. And as we have seen states
begin to threaten access to abortion, the ERA can help.
Ms. Pressley. That is right. It can help protect our right
to bodily autonomy and to advance reproductive freedom,
especially for the most vulnerable and marginalized. Professor
Nourse, at a moment when abortion bans, like Texas' S.B. 8, are
threatening pregnant people's right to healthcare, why are the
constitutional protections of the ERA particularly important?
Ms. Nourse. They are particularly----
Chairwoman Maloney. The gentlelady's time has expired, but
you may answer the question.
Ms. Nourse. They are particularly important because the
current Court has shown itself to be rather sympathetic to the
point that the right to privacy is not in the Constitution.
And, therefore, without actual text, without the text of the
ERA, it may well be that the Court reverses Roe v. Wade.
Ms. Pressley. Thank you.
Chairwoman Maloney. The gentlelady yields back. The
gentlewoman from New Mexico, Ms. Herrell, is recognized.
Ms. Herrell. Thank you, Madam Chair. Thank you, witnesses.
I wanted to followup with Ms. McClellan on the healthcare piece
on that last question. So how would the Equal Rights Amendment
affect longstanding bipartisan restrictions on Federal funding
for abortion, such as the Hyde Amendment?
Ms. McClellan. Abortion is healthcare, and the ERA is about
whether any laws related to healthcare, or the workplace, or
anything else would unduly discriminate on the basis of sex,
period.
Ms. Herrell. Right. My point that I want to make is I know
we have heard about marginalized vulnerability, but I also
think that we have a responsibility to protect those who are
the most vulnerable, which are those babies in the womb. And I
think when we start talking about abortion, late-term abortion,
I think that we are moving away from really our moral compass
and what our responsibilities are, and then we start ignoring
who the true vulnerable are. But thank you for that.
I want to ask Ms. Stepman a question. To me, it feels like
we have a solution in search of a problem. How would passing
such a bill hamper especially young women trying to go into
college? How would this hamper their opportunities when you
look around at college applications and now looking at
transgender athletes, et cetera? Would there be a problem with
that, in your opinion?
Ms. Stepman. Yes. I actually think the ERA creates a much
bigger problem than the accommodations for transgender
athletes, as disruptive as those have been to the opportunities
for women and girls. For example, Chelsea Mitchell in Canton
High School of Connecticut, she has lost four state
championships, all New England awards, and other honors to a
male-bodied athlete. But Chelsea wrote in USA Today that it is
a devastating experience. It tells me that I am not good
enough, that my body isn't good enough, and that no matter how
hard I work, I am unlikely to succeed because I am a woman.
The ERA would even have a broader effect, right, because,
again, all of this societal debate that we are having about how
to accommodate, for example, transgender athletes, is
ultimately about a very small percentage of the population. The
ERA places a ban on ``discriminations'' on the basis of sex of
all types, so it is not just a male-bodied athlete who
identifies as female that girls will be competing against, but
a male-bodied athlete who identifies as a boy. So when that
girl that you mentioned goes off to college, perhaps she comes
from a small high school where she has been competing on the
track team and she gets a scholarship to a public university to
continue running track. The boy who missed the cutoff for the
boys' team with his 100-meter dash can edge her out just on the
basis of that score, because the only reason that that boy is
kept off of that team is because he is a boy. That is a
discrimination on the basis of sex and is forbidden by the
plain language of the ERA.
Ms. Herrell. Right. So, in my opinion, I think what we are
doing is now we are weaponizing. Now we are using the same
gender protection against those who would already be protected
under this. I mean, if we are going to now see discrimination
because of a gender situation or if we are going to be awarding
those that are biologically men or boys over those that are
women, then I think what we are doing is we are really
essentially trading places. And I fear that what will be able
to do or what we will see happen is we will use the courts then
anytime we think that there is something running afoul, that we
will actually squelch the voices or silence those who then, I
think, would be hurt by this.
And I just want to followup that same question to Ms.
Salcedo. I mean, would you find that there is discrimination if
someone is born a boy or a girl and then being treated
differently in a transgender environment? Isn't that
discrimination against a young lady who is trying to get a
college degree by utilizing her athletic ability to get a
scholarship and can't get in because the scholarship has been
awarded to somebody who is obviously going to be faster or
stronger in a certain athletic event? Does that make sense to
you? Aren't we just reversing the discrimination, if you will?
Ms. Salcedo. What I can tell you is really about my own
personal experience, and I also want to say that it is really
unfortunate that we use examples that are not necessarily real,
right? The lives of young trans and gender non-conforming
people are real lives, and when we use rhetoric that diminishes
them, basically we are telling them that we are not valuing
them.
Ms. Herrell. I don't think that is true, though. And I
apologize if it sounded that way because I think every human
life has value, and I don't think it is rhetoric to say that. I
don't think it is right to say it is rhetoric because it is
certainly not rhetoric. I mean, I have read in the papers where
men identifying as women have gone into, say, wrestling matches
and actually injured, in fact, cracked the skull of a woman
because of the strength differential. So it is all rhetoric
because I think everybody has value regardless of what their
gender is and regardless of what they identify as. And I am
sorry. If you want to continue, we are just about out of time.
Ms. Salcedo. Do you want me to answer what you just----
Ms. Herrell. Sure.
Ms. Salcedo. So, you know, I think that, you know, when I
say ``rhetoric,'' really there is no research that proves that
young people are different, right, because young people, you
know, their bodies don't stop developing until they are 25. And
so when we use lies that, you know, young people, and children
specifically, are different, they are not necessarily
different.
Ms. Herrell. Right.
Ms. Salcedo. They are both the same.
Ms. Herrell. Right. Thank you for that, and really, thank
you all for being here today. And Madam Chair, my time has
expired.
Chairwoman Maloney. The gentlelady yields back. The
gentlewoman from the District of Columbia, Ms. Norton, you are
now recognized for five minutes.
Ms. Norton. Thank you, Madam Chair, for this important
hearing. Fifty years ago this very month, the House of
Representatives passed the Equal Rights Amendment with
overwhelming bipartisan support. As a former chair of the Equal
Employment Opportunity Commission, I can tell you that even
though the momentum behind the ERA waned after the first major
push passed, the need for it never has. If the Constitution is
silent on women's rights, other than the right to vote, and it
took us some time to get that right, we find ourselves fighting
the same fights for equality over and over again, fighting hard
just not to lose the rights we already have.
Professor Nourse, let me begin with you. How does the ERA
help make sure that gender equality is not dependent upon the
political leanings of the Supreme Court justices, and how would
it affect the standard by which gender discrimination cases are
considered by the Supreme Court?
Ms. Nourse. Well, thank you, and I say hello to a former
member of the faculty of Georgetown Law. Thank you for that
question. I believe the Equal Rights Amendment would, in fact,
support a stronger standard of review with respect to
legislation that has passed which denies equality, as well as
allow more legislation by Congress which supports equality. But
I want to clarify this because we have had a lot of
conversation here about sex differences being banned. No
sororities, sports teams, you know. That is not what this is
about.
The amendment does not require enforced equality in a sort
of precise way. It doesn't ban same-sex schools. That requires
you to think that strict scrutiny, which is a legal term
associated with the highest of rights which is likely to be
invoked under the amendment, is actually fatal in fact, and
that is not good law. We have shown in the race discrimination
and affirmative action cases, as you know, Ms. Norton, that
strict scrutiny is not necessarily fatal to legislation. So if
there were a compelling reason for a particular kind of sex
difference, that could still be sustained under the Equal
Rights Amendment, in my opinion.
Ms. Norton. That is a very important answer to get, and I
certainly appreciate it. Ms. Smeal, gender discrimination has
persisted over the last 50 years. The harms from discrimination
have long-term effects on individuals, and entrenched
inequality has consequences for the Nation as well. Ms. Smeal,
you were around for the first go-round of the ERA fight in
Congress. Many people attribute the failure to ratify then to
prominent women who fought against it. What do you think was
the real reason the ERA wasn't ratified then, who was behind
the opposition, and what motivated them to oppose equality for
women?
Ms. Smeal. Thank you for that question.
Chairwoman Maloney. Mic, please.
Ms. Smeal. Thank you. Women were blamed. Schlafly was given
credit, but the reality is we had every major woman's
organization on our side. In one demonstration alone, 400,000
telegrams were sent in to urge passing of the extension. We did
so many events. They would have a few hundred people. We would
have a few thousand, and the press would try to balance it out.
Who was really behind it? The Chambers of Commerce, the
National Association of Manufacturers, and the insurance
companies were big lobbyists against us. Insurance----
Ms. Norton. Why were they against it?
Ms. Smeal. Well, the insurance companies even put an ad out
saying--Aetna did--``Our Case for Sex Discrimination.'' At that
time, health insurance, auto insurance, annuities, pension
plans--I could go on--all discriminated on the basis of sex.
And if you look at it overall, we had a whole NOW project on
insurance discrimination just in auto insurance alone. Although
some argue that men paid more, if you had it based on miles
driven, women were paying far more. If you looked at health
insurance, it was very discriminatory. As I said before, it
frequently did not cover pregnancy and usually charged women
between 150 and 200 percent more for the same coverage. If you
looked at pension plans, women were charged more because
supposedly they live longer, but we could show that that
difference wasn't as much as people had in their mind. In other
words, they were taken advantage of in there, too.
I could go on, but basically that was always kept as a
woman's fight, like it was a catfight when there was a lot of
vested interest in keeping women in a certain position. We talk
about essential workers all the time, but they were forced to
work at minimum wage because, in fact, there weren't that many
opportunities for women. There was mass discrimination against
them. And I also felt that we had terrible problems from some
universities. The University of Florida, I will just give you
an example. I was an alumni. My master's degree is from there.
It was a very progressive part of the state, but the senator
from there was always against it. And why was he against it?
Because he thought the Gators would lose money because,
obviously, in most universities, a disproportionate amount of
money is put on male sports versus female sports. So there is
all----
Chairwoman Maloney. The gentlelady's time has expired and
wrap up.
Ms. Smeal. Thank you.
Chairwoman Maloney. OK. We now recognize the gentleman from
Georgia. Mr. Johnson, you are now recognized for five minutes.
Mr. Johnson. Thank you, Madam Chair, and thank you for your
work, your tireless effort in promoting and bringing about the
opportunity for this Equal Rights Amendment to become law. And
also thank you, my dear colleague, Eleanor Holmes Norton, for
all that you have done in that regard, and I want to thank the
witnesses for their testimony today.
When the U.S. Constitution was drafted to protect the
rights of ``we the people,'' at that time ``people'' meant
white men, and it did not mean women at all. One hundred and
forty years later and with the passage of the Nineteenth
Amendment, women gained the right to vote. However, this
essential milestone has proven insufficient to bring equal
opportunity to women across America. To this day, despite
making up more than half of our population, women still earn
less of what men earn for the same job, and this disparity is
even worse for women of color. It is past time to ratify the
Equal Rights Amendment, which would guarantee equal rights for
women under the Constitution, and I am a proud supporter and
co-sponsor of H.J. Res. 17, which will remove the arbitrary
deadline of 1972 for ratification of the Equal Rights
Amendment. Now that 38 states have passed the amendment, all
that remains is for Congress to approve this bipartisan
legislation.
Ms. Milano, The Guardian reports that the wage gap between
actors and actresses in the film industry is significantly
greater than most other industries. Men make about $1.1 million
more per film than their similarly experienced female co-stars.
What kind of sense can you make of that gross pay disparity
that exists within the film industry, and what does it say
about equal rights for men and women in your industry?
Ms. Milano. Thank you, Congressman, for your question. For
every dollar a man makes, the average woman makes 82 cents,
with black women earning 62 cents to the dollar, Native women
earning 57 cents, and Latinas earning 54 cents to the dollar.
This is not different in my industry. And I would also like to
add that we have heard a lot from our Republican friends about
our economy and about women getting back to work. Women do not
have the choices to be equal parts in our economy, and it has
been researched that if we were equal partners in our economy,
it would boost our economy $4.3 trillion over the next 10 years
as per the ERA Coalition's research.
So what are we hoping for? In my industry, but mostly for
the most vulnerable women, we are looking for equal pay for
equal work, prevention of discrimination in hiring, firing,
promotion, and benefits, protecting women from pregnancy
discrimination, and it would provide a constitutional basis for
claims of gender violence. The modern woman needs the ERA to
provide protections against the rolling back of the advances in
women's rights that have already been achieved. And when we
talk about women having choices, I just want to say that most
of the time we are not given choices. There are certain jobs
that we can do as women or we are allowed to do as women, most
in hospitality, or domestic work, or frontline workers. So I
really resent the notion that women are making different
choices. We have different opportunities, and part of that is
because of having no constitutional equality.
We are just looking for equal protections, equal
opportunity, equal rights. And if we are treated as anything
less than human, we also ask for equal recourse. Thank you.
Mr. Johnson. Thank you. Ms. Nourse, the seven-year
ratification period is not a constitutional requirement for the
passage of the Equal Rights Amendment. Would you agree?
Ms. Nourse. That is correct.
Mr. Johnson. And so why are we hanging our hats on that?
Why is it that that folks are using that arbitrary ratification
deadline as a means to deny formal adoption of the Equal Rights
Amendment?
Chairwoman Maloney. The gentleman's time has expired, but
you may answer the question.
Ms. Nourse. I believe that the fight against the ERA has
always been about distraction. So when it was first fought in
the 20's, it was about labor. Then it was about gay rights. We
got to find something. No one is really against equality for
women. Ninety-four percent of people approve of it. So people
get distracted by things that are not important to the legal
questions here. Congress has the authority to extend the
deadline if necessary.
Mr. Johnson. Thank you, and I yield back.
Chairwoman Maloney. Thank you. The gentleman from Vermont,
Mr. Welch, is recognized for five minutes.
Mr. Welch. Thank you very much. You know, I really
appreciate the testimony of all the witnesses and much has been
said, and I can't, even with my questions, add too much. But I
will just ask if any of the witnesses--I think this will be
almost probably the final words--Professor Nourse, is there
anything that we have left out, anything that you can say to
folks who are resistant to the passage of the Equal Rights
Amendment that you would like to say?
Ms. Nourse. Well, thank you for that. I will just repeat
what I said. Don't get distracted by slippery slope arguments.
``Oh, really bad things are going to happen.'' I mean, they
have been saying that about the Equal Rights Amendment for a
very, very long time, maybe 100 years. These are speculation.
So I would hope we would fix our focus on what we do know, and
what we do know is that the Supreme Court has not allowed
Congress to enact legislation to protect pregnancy
discrimination. We have legislation, but they have not said the
pregnancy discrimination is actually constitutionally barred.
They have not allowed Congress to pass legislation with respect
to gender violence. And it is an important constitutional
insurance policy given the current Court, which will, in fact,
in my view, because of its jurisprudential philosophy, turn
many protections that women have, I would they think they would
restrict them in ways that most people would not appreciate.
Mr. Welch. They are really at risk. I agree with that.
Thanks. And, Ms. Jenkins, can you speak to the way, you know,
this current patchwork of state and Federal laws fails to
protect women's rights and guarantee equality under the law?
Ms. Jenkins. As has been said by my sister panelists as
well, what the Equal Rights Amendment will do and what we
desperately need is fundamental constitutional underpinning of
the rights of women and girls. Listening recently to the
discussion about the Violence Against Women Act, and the
opposition to that, and the delay in the reauthorization of it,
we cannot by piecemeal give fundamental equality. It doesn't
work. Every season gives us another chance to detract from full
citizenship and from full lifesaving rights. So we really, I
think, in this country need to come to grips with the fact that
that the Constitution does not fully support girls and women.
We need to do that. Let's get the Equal Rights Amendment.
Some people have said, you know, well, it is just a symbol,
you know. I say, yes, like, you know, the flag. All right. Give
it to us. We need that symbol as well as the legal rights that
go with it. We need young girls to feel that they belong here.
We need women to not be engaged in this constant quest for
equality and for rights. At a recent rally in the streets, you
know, it was a big crowd, and I said, I am so glad to see you
all here, but let's not keep doing this. It has, of course,
passed, the Equal Rights Amendment, but let's get two things
that we need: the DOJ memo lifted, and, in the Senate, the time
limit removed. Let's do those two things and move on.
You know, a full century is enough time to have women in a
begging position. We are tired of that. We want our rights, and
now is the time to do it. It is the best time that we have to
do this now. Thank you for the question.
Mr. Welch. Well, thank you very much for your advocacy and
your eloquence. I can't add any more to that, Madam Chair, so I
yield back, and I thank our panelists for their wonderful
presentations.
Chairwoman Maloney. Thank you. The gentleman yields back.
The gentleman from Maryland, Mr. Sarbanes, is recognized.
Mr. Sarbanes. Thanks very much, Madam Chair. I, too, don't
expect to speak for the entire five minutes. I mostly wanted to
thank the panelists that you have assembled today for their
very compelling testimony on behalf of the Equal Rights
Amendment. I want to thank you, Madam Chair, for your tireless,
unending efforts to make progress on this. And we have had some
real success in the House of Representatives recently because
of your efforts, because of the leadership of Congresswoman
Speier and so many others of our colleagues. So I just want to
be another person on the committee and among your colleagues to
put that recognition and gratitude on the record.
We know that this is bipartisan. It has been bipartisan
from the beginning, the effort to get the Equal Rights
Amendment passed. Any time there is a robust effort to lift it
up, you see that bipartisan commitment. And we know as well
that, you know, the other side, the opponents to this will sort
of say, well, why do we need this. There is no real imperative
here. Our society has moved to a place where this is just sort
of a window dressing exercise. But we know from the testimony
today that there are real and critical legal protections that
come when we finally get the Equal Rights Amendment certified,
and those provide protections to people in our country who can
benefit tremendously from them. So that is very real.
But one of the panelists a moment ago talked about the
symbolism here, and as much as it will be a powerful symbol if
we can ultimately and hopefully soon certify the Equal Rights
Amendment of what America stands for in our principles, our not
being able to get it done is also a powerful symbol. It says
that there is still something that resides in the body politic,
in the kind of fabric of our Nation, that keeps us from being
able to make this important statement about who we are. So the
failure to do this, the inability to do this, the not doing it
is also symbolic in a negative way. And I think we want to
overcome that, send a very powerful, positive message about
America's commitment and principles, and also as well put in
place, and facilitate, and fortify key legal protections that
can flow from this.
So again, thank you for your leadership, Madam Chair. Count
me as----
Chairwoman Maloney. I am going to ask my colleague, before
you yield back----
Mr. Sarbanes. And I yield back.
Chairwoman Maloney. Please, please don't yield back because
I want you to yield some of your time to Ms. Milano, who has
some things she wants to say.
Mr. Sarbanes. OK. Let me do that.
Chairwoman Maloney. OK.
Mr. Sarbanes. Ms. Milano, please, I would love to hear your
thoughts.
Ms. Milano. Thank you. So we have heard a lot today about
women not needing the ERA because of the Fourteenth Amendment,
but I want everyone to note that that came five amendments
before the Nineteenth Amendment, which is our ability to vote.
So clearly the Fourteenth Amendment does not provide equal
protection or women would have, you know, been allowed to vote
after the Fourteenth Amendment was passed. Also I want to say
we have also heard a lot today about just starting over. Let's
start this process over. How long do we need to wait for women,
trans women, non-binary people to be included in our founding
document? Thank you very much.
Chairwoman Maloney. Thank you so much. And before----
Mr. Sarbanes. Thank you very much, Ms. Milano. The time is
now, absolutely. Let's get this done. Chairman Maloney, thank
you for all your terrific work and for convening this hearing
today.
Chairwoman Maloney. Well, thank you, and I am so
appreciative to all the like-minded men that are trying to help
us with this ratification. Thank you.
Before we close, I want to offer Ranking Member Comer an
opportunity to offer any closing remarks he may have. You are
now recognized.
Mr. Comer. Well, Madam Chair, and, again, I want to thank
the witnesses for being here. And, Ms. Milano, I am a fan of
your movies. I appreciate you being here. We all support equal
rights, and we are very fortunate to have the Constitution that
we have which guarantees equal rights. And I know that we have
talked a lot on our side about unintended consequences of the
Equal Rights Amendment, and it is important when we have
political debate, that we debate the pros and the cons of
legislation because a lot of times what happens is, especially
with my friends on the Democrat side, they get caught up in the
political correctness moment and they don't anticipate
unintended consequences. For example, you can talk about
climate change and the need to address climate change, and you
can pass legislation and have policies and mandates, like the
Biden Administration has done, that has the unintended
consequence of gas prices going up more than 100 percent in
less than 10 months. You can print money by the Treasury to
help provide guaranteed income and extended unemployment and
things like that, but the unintended consequence is inflation,
which is a tax increase on everyone.
You can declare a border wall is politically incorrect. The
unintended consequence of that is, of course, open borders.
When you have open borders, obviously the unintended
consequence of that is you have an increase in drug smuggling
and human trafficking. You can defund the police as a reaction
to a bad cop or several bad policemen, which is a micro-
minority of the true actions of our overwhelmingly tremendous
male and female police force. But when defund the police, you
have the unintended consequence of increased crime. Again, you
can pay people not to work and you can do things like mandate
vaccines, but the unintended consequence of that is labor
shortages and, of course, supply chain disruptions.
So we are blessed to live in the United States, the
greatest country in the world. I know that several people
referenced other countries that may have more preferred
language in their Constitution about equal rights. I didn't
hear anyone say anything about Afghanistan, which this
Administration just turned over a lot of our military weaponry
and our very nice Air Force base to. So we have come a long way
in the United States. We have more work to do, but I appreciate
the opportunity to be able to have a conversation about this
issue. And, Madam Chair, I yield back the balance of my time
and look forward to having more hearings on Government
Oversight and Reform. Thank you.
Chairwoman Maloney. Well, thank you. The gentleman yields
back, and I would like to really thank all of our witnesses
today for sharing their expertise and their experience. And I
appreciate that we managed to come to some bipartisan consensus
that all men and women should be equally treated in this
country. A number of our friends on the other side of the aisle
made that statement, and the ERA is the way to achieve that.
Legislative measures alone are not enough and are too easily
rolled back. From my own experience, I have spent more time
fighting to hold onto what we have than moving forward. And if
we could have those guarantees, then the efforts of men and
women that care about equality of treatment could be spent in
other ways.
I was just thinking that we have 50 years after the passage
of the Equal Rights Amendment, and we heard from many of our
panelists today that it is more important today than ever. And
I couldn't help but think how would our country be different if
we had, in fact, ratified the Equal Rights Amendment in 1972.
Victims of sexual violence would have the right to sue under
the Constitution, and possibly the amount of sexual violence
and assaults would have fallen in our country so that Alyssa
Milano would not have had to start the Me Too movement that she
started and worked with Tarana and others so brilliantly. Ms.
Salcedo, who talked so movingly about your own personal
journey. I think it is very difficult for people to share
troubling times like that, but certainly people from
marginalized genders would certainly likely be covered by the
ERA and would have more protections.
And certainly the assault that we have now in Texas is
almost unbelievable to me. They have already rolled back under
their draconian law the right to abortion, really. Most women
don't even know if they are pregnant at six weeks, and I think
it would have empowered women enough not to have had that
happen and is happening right now. And, Carol, you spoke so
beautifully about wanting to empower women, but particularly
women of color, and certainly this would have given them more
protections.
We know that economists tell us that the No. 1 area of
poverty in America is older women because of the unfair
treatment in their pay translates into lower pensions, lower
social security, lower retirement, if they have any at all, and
certainly there would be less women in poverty in America. And
equal pay for equal work, it hasn't budged, the gap, in 30
years, and if you had equality in the Constitution, then you
would be able to enforce equal pay for equal work. It is that
simple. It would give the right to women to enforce.
So if I had one question, I would ask the panelists to
write for Congress how you think--you are all specialists in
this and you have devoted your lives in it--how would America
be different if the Equal Rights Amendment had been ratified. I
know my life would have been extremely different, and I believe
most women's lives. And I want to really thank not only the
panelists, but the like-minded men in our country that have
been our allies, that have worked side by side with us to try
to reach a ratification. And we have waited too long, and so we
are not giving up now, and I will continue working with all of
you to ratify it and get women's protections into the
Constitution for full equality. And I yield back.
In closing, I want to thank all of our panelists for their
remarks, and I want to commend my colleagues for participating
in this very important conversation.
And with that and without objection, all members have 5
legislative days within which to submit extraneous materials
and to submit additional written questions for the witnesses to
the chair, which will be forwarded to the witnesses for their
response. I ask our witnesses to please respond as promptly as
you are able.
Chairwoman Maloney. This hearing is adjourned.
[all]