With time ticking, some lawmakers still hope state will become 39th to ratify the ERA

Two Democrats are sponsoring legislation this year that would ratify the Equal Rights Amendment in Florida. Neither has managed to get their bills on an agenda.

Rep. Fentrice Driskell is sponsoring the House bill (HCR 239) while Senate Minority Leader Audrey Gibson is sponsoring the companion bill (SCR 392).

The long-stagnant ERA simply states that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

It’s not clear why the bills appear stalled in their first committees of reference. Rep. Bob Rommel and Sen. Dave Simmons, chairs of the House Civil Justice Subcommittee and Senate Judiciary Committee respectively, did not respond to requests for comment.

However, both are Republicans and pushback on ratifying the ERA has come almost unanimously from conservatives nationwide. The conservative talking points have varied. Some are seemingly outlandish, like claiming the ERA will allow women to use the same bathrooms and locker rooms as men.

Others are hard to quantify like claiming that paying women the same as men would cripple businesses. The debate over pay equality has long heralded battle cries arguing women don’t earn as much as men because they require more time off to care for children or don’t spend as much time on the job because they place the needs of family over the needs of business.

All arguments to which many women, though not all, cry pish posh.

But the biggest one in the primed politicized landscape of 2020: Abortion.

Unfortunately, or perhaps fortunately, for those hoping to see the ERA finally adopted into the U.S. Constitution, the jury is still out on whether the ERA would have any impact on access to abortion or public funding for it, which the Hyde Amendment currently prohibits.

No court has addressed the issue, largely because the ERA is still, since it was first introduced to Congress in late 1923, only a concept.

But even anti-abortion Republican former Illinois lawmaker Steve Andersson rejects the claim that the ERA would be a major loss for those who oppose abortion.

In an Arizona Capitol Times op-ed last August, Andersson wrote in favor of ratifying the ERA and rejected any fears about its effects on abortion access and funding.

“NO cases that hold that the ERA requires public funding for elective abortions, because it doesn’t,” he wrote, emphasis his own. Andersson offered an example.

“The courts only state the obvious, that you can’t have two ‘medical necessity’ standards, one for men and one for women,” he wrote.

It would be illegal for a law to require medical treatment for testicular cancer for men, but deny it for cervical cancer for women, he argued. Why? Because “the issue isn’t the cervix versus the testes, it’s the cancer.”

Driskell also cautioned against pinning ERA ratification on abortion concerns.

“We don’t know for sure whether it would expand abortion rights or restrict them. That’s an issue that’s up to the courts,” she said.

Another major argument is that women already have protections against discrimination.

That too has been rejected by at least some conservatives.

“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t,” said late conservative U.S. Supreme Court Justice Antonin Scalia in response to questions about whether the 14th Amendment to the Constitution applies to sex (gender) discrimination.

The 14th amendment, it’s also worth noting, was in place 50 years before women were granted the right to vote under the 19th amendment.

It’s worth noting, however, that Scalia did go on in that same answer to argue “if the current society wants to outlaw discrimination by sex, hey, we have things called legislatures, and they enact things called laws.”

Enter the other big argument among anti-ERA ratification folks.

That’s where groups like the Athena Society come in.

Yes, the group agrees, state Legislatures can enact laws protecting women and others against discrimination, but those protections are far more temporary than a constitutional amendment, even if the laws are congressionally approved.

“Laws can be rolled back by a simple act of Congress. As an example, Congress recently let the Violence Against Women Act expire.  A constitutional amendment provides a needed layer of safety and protection to women,” wrote Lorna Taylor, president of the Athena Society.

And in Florida, there is bipartisan support. While most of the several co-sponsors on both bills are Democrats, Sen. Jeff Brandes and Rep. Amber Mariano, both Republicans, also have signed on as co-sponsors.

It may seem moot to have Florida finally ratify the ERA. Virginia recently became the 38th state in the nation to ratify the amendment, reaching the key threshold for adoption.

However, congressional action is still needed to add the ERA to the Constitution. Congress approved the amendment by the required two-thirds vote in 1972, sending it then to states to ratify.

While Virginia’s ratification met the 38 state threshold, the timeline for ratification has long since expired. But Congress extended that deadline once and could do so again.

For every state that ratifies the amendment now, it sends a stronger mandate to extend or eliminate the ratification deadline.

Groups supporting ratification also point to economic opportunities through creating diverse and welcoming workplaces.

“By empowering all Americans and ensuring their equality in the workplace — we create an improved, more diverse workforce and amplify our economic engine. It is this scenario that will allow Florida to truly take advantage of the opportunities presented by this time of  unprecedented growth,” said Tampa Bay Chamber of Commerce Chair Maryann Ferenc. “Isn’t it time to fully engage all Floridians in our economy by guaranteeing them equality in our economy?”

Also important, this year is the 100th anniversary of women’s suffrage, so women’s empowerment groups are looking at this as a symbolic year to set yet another standard for women’s equality.

While much has happened in the 100 years since the 19th amendment passed, women still earn an average of 85 cents on the dollar compared with their male counterparts in Florida, according to the Institute for Women’s Policy Research.

The Institute also projects that given historical trends, white women nationally will have to wait until 2059 for equal pay. Black women won’t reach pay parity until 2119 with Hispanic and Latina not earning equal pay until 2224.

“Florida had the opportunity to be the first state to ratify the 19th amendment,” Driskell said regarding the state’s last-minute decision not to ratify the 19th amendment, which the state did not end up approving until 1969. “But we missed the opportunity and I would hate for us to miss the opportunity to be on the right side of history here.”

Transportation industry expert Kimberlee DeBosier, a no party affiliated voter, cited polls showing 94% of Americans support women’s equality being included in the U.S. constitution.

“The objections raised a half-century ago are clearly not applicable for our nation in the 21st century. Florida, specifically, needs to be aligned with our citizens and states who we consider our economic competition to recruit and retain the best and the brightest,” she said.

Still, the chances of Florida ratifying the ERA this year become dimmer each day the two bills fail to get a committee hearing. Driskell said regardless, she and other supporters will work tirelessly this session to make it happen.

“We’re continuing to work behind the scenes to get bipartisan support for this. As long as there’s still time on the clock, we’re going to keep trying,” she said.