It all came down to Virginia.
After nearly four decades of tumult and setbacks, the long-dormant Equal Rights Amendment may finally be added to the United States Constitution, an event that hinged on politicians in Virginia. The Virginia House of Delegates voted to ratify the ERA on Wednesday; making Virginia the 38th and final state needed to seal the deal. While the vote will likely kick off a court battle over whether the amendment can be ratified at such a delay, Virginia’s decision is a game-changer that resurrects a long muted fight.
The ERA 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.” It’s a seemingly simple promise of protection for more than half of the United States population, but its legality has been in jeopardy for decades. The Justice Department’s Office of Legal Counsel released an opinion last week insisting that it’s too late to ratify the ERA, that the initial March 1979 expiration date originally set by Congress in 1972 is long gone, and therefore the amendment is “no longer pending before the States.” But ERA advocates insist that the expiration date was not part of the amendment itself, but the preamble, and that Congress can ignore such deadlines if it so chooses. Legal questions also loom regarding five states that rescinded their ratification of the ERA.
But Jennifer Carroll Foy, an attorney, public defender, and an elected member of the Virginia House of Delegates, won’t be deterred by the OLC’s opinion. She’s more interested in making sure people in Virginia and across the country understand why the ERA matters in 2020. The ERA hasn’t been a household name in generations, coming across as more of a ‘70s relic—akin to an avocado-colored kitchen—than an actual amendment of consequence. Foy wants to change that, especially in the eyes of black women and other women of color.
Foy believes this sentiment is misguided—that the ERA is not a white woman’s battle, and it cannot afford to be characterized as such as the fight for protections under the law rages on.
“African-American women are traumatized by sex discrimination, and they suffer through,” Foy said via phone. “So they ignore the remarks. They ignore the touches. They ignore these things. At the end of the day, it becomes a question of your humanity or going hungry, because people need jobs and retaliation is real.”
While there was certainly widespread support for the ERA from black people and organizations at the height of ERA mania—Shirley Chisholm was a vocal proponent—the specter of whiteness has tended to dominate the ERA movement: whether it was the white second-wave feminists who represented the fight for the ERA’s passage, or conservative women, like Phyllis Schlafly, whose successful campaign against the ERA helped anoint her white domesticity utopia. It sometimes appeared as though white women were using the ERA to enhance their own standing, whether they rallied for it or against it.
But optics aren’t everything, and Foy argues that black women in particular have the most to gain from the ERA’s passage.
“When you fill in these gaps with the Equal Rights Amendment to really help end sex discrimination, really get equal pay for equal work, I think it will raise black women in a way that we have not seen in generations,” Foy said.
Jezebel spoke with Foy before the historic vote about what the fight for the Equal Rights Amendment looks like today. The following interview has been edited for length and clarity.
JEZEBEL: How did you got involved with this fight in the first place?
JENNIFER CARROLL FOY: So my first exposure to sex discrimination and what it was and what it meant and why I think I first picked up the torch for this issue was when I was a student from high school in Virginia, and I was one of the only women in my JRTC class. We were watching the Virginia Military Institute decision on TV. And I didn’t know at the time that Virginia Military Institute, one of the top military colleges in the country, had spent millions of dollars to keep women out of its doors and have appealed all the way to the Supreme Court of Virginia. And a lot of the men in my class said things like, “Well, women don’t belong at a military college and all-male institutes.” [Women] can’t run as fast, can’t push as hard, can’t climb as high. And what’s most important, we shouldn’t be allowed to attend because women would be a distraction to men.
They can’t control themselves, so it’s our fault. So we should be denied. And so I remember hearing Justice Ginsburg saying—and I’m paraphrasing—when she was talking during the decision, she said that basically women can do all things if given the opportunity and that separate is not equal when it comes to institutes of higher learning, that women should have the same educational opportunity as men. And I jumped up and I agreed, and I looked at the men in my class and I said, I’m just as smart and just as powerful and capable as any man in this room, and all of the guys protested. It was at that time that my best friend—he was going to go to West Point—came up to me and he said, “I was going to go to West Point, but I’m going to go with you when you go to VMI, because I wanted to be there to watch you when you fail.”.
Yeah, I was shocked. But then I remembered very quickly that although we’re friends, I’m still female and therefore inferior. And you can always be friends with your inferior, that’s not a problem. But when you are challenged... that’s when we have a problem.
So I went to VMI. So did he and another male in our class. VMI didn’t change any of its standards for women. It was not thought of and the intention was not for it to be a very welcoming place. It has one of the highest dropout rates of any institute of higher learning in the country. So when [the guys] got their heads shaved bald, so did I. When they gave the men men’s uniforms, they gave me a man’s uniform. And for years, I marched, wept, and bled beside over a thousand male cadets, and they all knew who I was, and they all knew my name because I didn’t blend in. I was the only one who looked like me. You know, a five ten, ninety-eight pound African-American woman. And after several years of being there, out of the other two men [from my high school] who went with me to VMI, I’m the only one to walk across the Virginia Military Institute stage.
And what year was that?
That was in 2003.
So that was my introduction to Ruth Bader Ginsberg. That was my introduction to sex discrimination. That was my introduction to being the change that you want to see, that discrimination and inequality are real. It was also my introduction to intersectionality: Oftentimes I couldn’t determine if I was discriminated against because I was a woman or because I was African-American or both.
So that’s one of the reasons why I decided to champion the Equal Rights Amendment, because I was still having conversations about women not being paid the same as men. Just because of the amount of melanin in my skin, I am paid as an African-American woman, on average, 60 cents to a white man’s dollar with the same experience, education, everything. And there is no rationale for it. We should not be having these conversations in 2020. So. I wanted to help champion this issue and lead the charge. And coming off of the women’s march, the Me Too movement, Time’s up... coming up on the 100th year anniversary of the woman’s right to vote... Like, all of these things are historic. And for us to actually be able to solidify women’s equality in the United States Constitution? That’s the next step.
There are so many instances in which black women are challenged to or encouraged to choose between whether they feel more discriminated against because of their race or because of their gender, but when we’re moving through the world, how we experience discrimination is often twofold. How has being a black woman made the ERA feel that much more important to you? And why do you think it should be important to black women across the country?
I gave two bus tours throughout the Commonwealth of Virginia, trying to educate an introductory about the Equal Rights Amendment, and I heard two comments over and over. One, “I didn’t know that that’s still a thing.” Meaning, they did not know that women were not explicitly protected in the United States Constitution in regard to equality. And the second thing I heard was from people of color, especially women of color: “Why should I care? How does this impact my life?” That says to me that the narrative [surrounding the ERA] has been that this is a wealthy white woman’s issue.
It’s my job to champion this important policy, this resolution to say it affects women and men in general, but it affects women of color specifically. And that’s because we suffer the gravest impact from inequality in pay. Because most single-parent households are disproportionately led by black women and women of color. Most people getting paid minimum wage or close to it are African-American women. And so when you look at the statistics, if we are actually able to fill in that gap, fill in that void, and actually give women equal pay for equal work, it’ll have a greater impact on black women than it will for any other group that’s out there. So when we actually start paying women what they’re worth—Black women, what they’re worth—you not only lift millions of women, but millions of families out of poverty. And when we talk about race reconciliation and we talk about racial equity, that is one of the most important factors, economic equality. Because as Martin Luther King said towards the end of his life, that is what’s really important. It doesn’t matter if you have a seat at the lunch counter if you can’t afford the food. We have to be able to address that and how the Equal Rights Amendment will benefit women of color on a grander scale. And I want to make sure to push that narrative forward, that his matter is not only for women across the country, but black women, and Asian women, and Latinas, and Native American women more so than anyone else.
This is very much in the DNA of black activist movements in this country. It’s just something that we don’t really talk about, or really acknowledge to the same extent that it deserves.
I remind people that this is something that Frederick Douglas fought for, this is something that Ida B. Wells fought for. I mean, [women’s rights] is a significant issue that black woman and men a long time ago said will benefit us in significant ways. And unfortunately, the [women’s rights] movement does have some ugly history, where we were asked to march in the back of the parade [during the Women’s Suffrage Parade] and our issues weren’t at the forefront because, you know, hierarchy. But even our African-American leaders of the past saw how huge of an impact an Equal Rights Amendment can have on equality for African-Americans.
So with all that said, explain what exactly is happening in Virginia right now.
Virginia is, right now, ground zero for the Equal Rights Amendment. Everything rests on our shoulders. We’re looked to across the country to be the thirty-eighth and final state needed to ratify the Equal Rights Amendment to the United States Constitution. So we have a lot of people in support who have been fighting for this for generations. And then we also have the anti-equality people who are down here in Richmond trying to fight against women’s equality. They’re trying to use the same fear-mongering and misinformation that they use whenever you’re talking about equality. A lot of times I tell my people, these are the same people who fought against desegregation, fought against interracial marriage, fought against women’s right to vote. So why would they not fight against our equality? Why would this be any different?
I’m pushing for Virginia to ratify not only because it’s time, but because Virginia being on the wrong side of history so many times. We need to usher in 2020 as the state to make women’s equality happen. So I think it’s appropriate, I think it’s poetic. We have the majority [in the state legislature]. The Equal Rights Amendment was one of the top three issues that I heard throughout the Commonwealth of Virginia when knocking thousands of doors [prior to the November 5, 2019 election]. And I know the legislators here, they have their marching orders and are ready to vote and get this done.
The Department of Justice’s Office of Legal Counsel said that the ERA has expired, and there’s news of potential complications. Is that the fear-mongering you’re talking about?
That is exactly the fear-mongering that I’m talking about. So, I’d like to remind people that this is the same Department of Justice that supports Trump not releasing his tax returns. This is the Department of Justice justifying not supporting the Trump-Ukraine whistleblower complaints to Congress. So this Department of Justice has been cherry-picked for people who will protect the president and the Republican Party by any means necessary. And unfortunately, attacking women’s equality is one of their number one issues right now. But we’ve seen the rhetoric come out, right? We’ve seen them be homophobic, transphobic, Islamophobic... why would the women issue be any different? They’re fighting vehemently against change.
But change is going to happen. Social progress is not going to stop. You’re not going to quiet down 160 million women and girls who are waiting for the constitutional equality parity as a partner. Virginia is going to do it. And I look at the Department of Justice opinion as just that, their opinion. And it does not trump Article 5 of the United States Constitution and it does not trump Congress. So the will of the people will override any opinion any day. And the archivist [from the National Archives and Records Administration] is charged to do exactly what the Constitution tells him to do. Once we pass the resolution here in Virginia, he has to give everyone notice that the 38th and final state has ratified, and after two years, it becomes a part of the United States Constitution.
Now, we are not just resting here. After we do that, we have constitutional attorneys and legal scholars who have already filed suit to make it clear what Article 5 says, to make it clear that the timeline doesn’t matter, and even if it does, Congress can extend it or void it as they’ve done before. We actually have two bills in Congress right now to retroactively remove the timeline to the Equal Rights Amendment altogether. So we are more than confident that we’re going to get this done, and having a legal battle does not deter us or deflect us whatsoever. I mean, the 14th Amendment was passed to protect people’s fundamental rights and equality, and we are still litigating that amendment today. So, I’m totally fine with the conversations.
You sound very confident, which is heartening to hear, but what about the five states have dropped out of ratification?
That’s not a liability. With the 14th Amendment, Ohio and New Jersey rescinded their ratification and their rescission was ignored. The 14th Amendment was added to the Constitution. We have legal precedents on that, so the support is not an issue. That’s not a challenge.
So what’s next for you? What do the next few weeks, months look like for you and even beyond? Let’s say that that gets passed. What are you doing after that?
[Laughs] So this session looks like equality across the board, me fighting for fairness and equality for Virginians and improving everyone’s quality of life. So on the woman and families front, I’m also procuring legislation to make breast milk covered by insurance. It’s not. When you have premature babies who are fighting for your life in the ICU, statistics show that they do well and they thrive if they have breast milk. And so if the mother is unable to pump or unable to produce, getting those babies the nutrients that they need is imperative. And you oftentimes have people who are on Medicaid who need it the most. And so I have that bill to cover that caring paid family medical leave, because in Virginia— one of the wealthiest states in the country—women have to make decisions between their family or their job.
And that actually happened to me. I gave birth to my twins, and I had to be hauled back to work right after giving birth because we don’t have paid family medical leave here in Virginia. And I couldn’t afford to take three months off with two new babies, leaving them in the ICU for months. That’s one of the reasons why you need women to have a seat at the table: We understand these challenges intimately because we have to suffer through them. And it is my job to make sure that the women that come after me don’t have to make these same tough choices. And then pregnancy discrimination: We haven’t codified federal pregnancy discrimination laws here in Virginia. So I want to make it illegal for employers to discriminate against women just because they’re pregnant. I think that’s a common protection that we should have here in Virginia, and I’m going to fight for it.
And these commonsense protections remind me of what you were saying earlier, that you would talk to people across Virginia about the ERA, and people are like, “Oh, I didn’t even know we didn’t have those protections.” I think a lot of people just assume this is already in the books.
Is there anything else you want to add about either the ERA and marginalized women?
Yeah, absolutely. I am excited by what’s happening throughout Virginia and throughout the country with women stepping up, taking charge, owning our power and running for office in historic numbers. I just want that to continue. I’m trying to emphasize that this is not a moment, this is a movement. Women in power is something that everyone should get used to. We will own a seat at the table and we’re not going to go anywhere. I want to encourage, women—black women, Latinas, Asian women, women everywhere—to take up the charge, because we cannot believe that our fundamental rights are guaranteed. There is a war against women that’s happening throughout the country, and that’s not hyperbole. You look at all of the attacks on women’s ability to control their reproductive health care, denying women’s access to birth control. It’s astonishing. The only thing that we can do is let everyone know that we are here, we will be heard, and we’re a force to be reckoned with. So I want to encourage women across the country to take up the charge, run for office, and support other women and men who are supporting our agenda, supporting women, and supporting families who will help move us all forward.