Even if you slept through U.S. history in high school, you might assume that ye olde Constitution guarantees equal rights for both men and women. Never mind the “all men are created equal” stuff. (Oh wait...that’s the Declaration of Independence!) According to one survey, 80 percent of people assume men and women have equal rights under the Constitution.

But actually, they don’t!

I KNOW!!

It’s not totally shocking that the all-male, all-white cast of Constitution writers neglected to mention women even once. And despite amendments that guarantee rights for gun owners (the Second Amendment) and accused criminals (the Sixth Amendment), the closest the Constitution comes to talking about equal rights is the Fourteenth Amendment, which says that “any person within [a State’s] jurisdiction” has “equal protection of the laws.” But this amendment doesn’t mention women specifically nor does it outlaw gender discrimination (it was adopted in 1868 to ensure the rights of former slaves).

Luckily, there is a proposed amendment ready to go that lays out women’s equality in much more explicit language:

Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Uncontroversial, right? But the Equal Rights Amendment (ERA) has been hanging around since 1972, waiting to be passed so it can join the official Constitution. And rn, it looks like it might actually go through: On January 15, Virginia became the 38th state to ratify the amendment. But the amendment isn’t in the clear yet. The deadline for three-quarters of states to approve the ERA expired in 1982, so experts are wary that ratification will come ASAP.

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But let’s back up a bit...

So Wait, Why Isn’t This in the Constitution Already?

:::pulls down imaginary blackboard:::

After women won the right to vote in 1920 (reminder: This was the 19th Amendment. Another reminder: In many places, this amendment effectively didn’t apply to black women, because of local voting laws that were intended as barriers. The Voting Rights Act of 1965 protected African Americans’ rights to vote), activists began campaigning to add an amendment that would guarantee women equal rights with men in all ways. The bill went nowhere (womp womp), but over the next 50 years, various representatives continued to introduce it in Congress. No one made progress until 1972 when both the Senate and the House of Representatives overwhelmingly voted in favor. But you can’t officially amend the Constitution without two-thirds of state legislatures also agreeing (in other words, 38 states).

States had until 1982 to ratify the ERA, at which point only 35 had done so (you can see a full list of how states voted here).

Then the movement kind of...died.

Bella Abzug Joining with Protesters
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Hold Up, Why Didn’t Every State Jump on This? Are There People Actually Against the ERA?

Frustratingly, yes. In the ’70s and ’80s, anti-ERA activist Phylis Schlafly led a conservative movement against the amendment, arguing that it would hurt women in traditional gender roles. She also suggested that it would force women to join the military draft or fight in combat (women do this now because they want to, not because they’re being forced to), that it would make it harder for divorced women to get alimony, and that it would make every bathroom unisex (is that such a bad thing, really...?).

Anti-ERA folks still roll out these arguments today.

94% of Americans "overwhelmingly support" the Equal Rights Amendment, according to a survey by the ERA Coalition.

“A lot of the opposition is rooted in sexism,” says Storm Enole, founder and director of RatifyERA.org. “It comes down to a fear of inclusion in society. But you either agree that women are human beings and are entitled to the same treatment under the law or you do not.”

“This is a massive piece of unfinished business because women were initially, and intentionally, left out of the Constitution,” adds Jessica Neuwirth, co-president and founder of the ERA Coalition and author of Equal Means Equal.

There is some bipartisan support for the ERA. Sen. Lisa Murkowski (R-AK) and Sen. Ben Cardin (D-MD) recently came out in favor in a joint op-ed in the Washington Post, where they wrote:

“Women should not be held back or provided less opportunity, respect, or protections under the law because of their gender. This is not a partisan issue but one of universal human rights. Gender equality should be an explicit, basic principle of our society.”

How Will This Actually Affect My Life if It Passes?

Glad you asked. The ERA would protect women against pregnancy or motherhood discrimination, federally guarantee equal pay, and recognize that gender-based violence like sexual assault or rape is a form of sex discrimination, according to Lenora Lapidus, director of the Women’s Right’s Project at the ACLU. “The ERA would make it clear once and for all there can be no discrimination on the basis of sex,” Lapidus says. “There can be no differential treatment of individuals based on their gender.”

Right now, if lawmakers want to eliminate things like the pink tax (i.e., the fact that female-designed products cost more than ones for men) or ensure that every public school carry free menstrual products, they have to submit legislation and tackle these issues one-by-one, says Jennifer Weiss-Wolf, vice president for development and women-and-democracy fellow at the Brennan Center.

As Rep. Carolyn Maloney (D-NY) said last year: “The ERA would mean that women would no longer have to fight the pink tax product-by-product or fight the gender pay gap job-by-job or employer-by-employer. It would solve intractable problems that a piecemeal approach cannot.”

Rally At U.S. Capitol Celebrates 40th Anniversary Of Congressional Passage Of ERApinterest
Chip Somodevilla//Getty Images

Why Are We Talking About This Now?

Because, as you read up above, Virginia ratified the amendment, which is huuuge. But it doesn’t guarantee that the ERA will become our brand-new Twenty-Eighth Amendment. There will likely be legal proceedings claiming it’s not valid because of that old-school 1982 deadline we all missed.

After the 2016 election, there was a groundswell of support to reignite the convo around the ERA. “You had the election and the Women’s March, and then you had #MeToo,” says Carol Jenkins, co-president and CEO of the ERA Coalition. “People began to understand that there had be a solution to all this inequality. That solution is the Equal Rights Amendment.”

In March 2017, the movement gained huge momentum when the Nevada state legislature voted to ratify the ERA. In May 2018, Illinois did too, bringing the total number of ratified states up to 37. (Yep, only one more to go.)

“This was a gigantic wake-up call combined with the politics of the day,” says Weiss-Wolf. “The idea that we are not awarded full equality in the Constitution is terrifying to some people.”

Headshot of Jessica Goodman
Jessica Goodman

Jessica Goodman is the New York Times bestselling author of young adult thrillers They Wish they Were Us, They’ll Never Catch Us, and The Counselors. She is the former op-ed editor at Cosmopolitan magazine, and was part of the 2017 team that won a National Magazine Award in personal service. She has also held editorial positions at Entertainment Weekly and HuffPost, and her work has been published in outlets like Glamour, Condé Nast Traveler, Elle, and Marie Claire.