NAWL Joins 4th Circuit Amicus Brief in Support of Student Sexual Assault Survivor

January 17, 2025 The National Association of Women Lawyers (NAWL) applauds President Biden's declaration recognizing the Equal Rights Amendment (ERA) as "the law of the land," which represents a victory for the countless advocates who have tirelessly championed gender equality. NAWL has been a steadfast supporter of ratification of the ERA since it was first introduced and was one of the first national organizations to endorse it. NAWL was present for its first reading at the National Women’s Conference in 1923 and subsequently printed the proposed Amendment in the Women Lawyers Journal that same year. When Congress finally passed the amendment in 1972, the campaign for ratification by the states became NAWL’s major project for the following decade. In 2020, NAWL issued its Resolution in Support of the Ratification of the ERA to the United States Constitution, committing to continue its advocacy. For over a century, the ERA has symbolized the fight for gender equality. As NAWL member Marguerite Rawalt poignantly noted in the Women Lawyers Journal in 1971, “Equal justice does not exist for women under the Constitution as interpreted to date. They are the one remaining ‘class’ and category not yet adjudged to come under the legal umbrella of the Constitution.” We will continue to work to fulfill the promise of equal justice for all citizens, regardless of sex and gender status.

December 16, 2024 The Honorable Joseph R. Biden, Jr. 1600 Pennsylvania Avenue, NW Washington, DC 20500 Re: An Urgent Call for Your Legacy Dear President Biden: This month marks 101 years since the Equal Rights Amendment (ERA) was first introduced in the US Congress. The ERA would constitutionally protect equality of rights under the law regardless of sex. While it has met all ratification requirements, the ERA remains to be added to the US Constitution. Publication of the ERA is essential for the restoration of reproductive rights and health care in our country, the enforcement of existing federal anti-discrimination laws, and the health of our democracy. On behalf of the League of Women Voters (the League), Shattering Glass, and the 141 undersigned organizations, we urge you to, in your last months serving as President of this nation, direct US Archivist Shogan to fulfill her statutory duty and certify and publish the Equal Rights Amendment as the 28th Amendment to the Constitution. Despite the significant legal and legislative advances made in recent decades, women and other Americans continue to face discrimination on the basis of sex, fundamentally undermining a central tenet of our democracy: equality. Under the US Supreme Court’s current interpretation of the Fourteenth Amendment’s Equal Protection Clause, sex discrimination claims are not subject to the same strict scrutiny standard as other protected classifications, such as race. The ramifications of applying a lower standard of review, heightened scrutiny, to sex discrimination claims are clear, including limited access to comprehensive health care, domestic violence, unequal pay, workplace harassment, pregnancy discrimination, discrimination against LGBTQIA+ individuals, and more. And with United States v. Skrmetti currently before the US Supreme Court, there is real and substantial risk that protection based on gender and gender identity under the Fourteenth Amendment’s Equal Protection Clause may be severely weakened or eliminated altogether. 1 Two and a half years ago, supporters of women’s, civil, and human rights watched in horror as the US Supreme Court overruled Roe v. Wade , overturning the federal constitutional right to abortion and stripping women and people who may become pregnant of a fundamental right they’d held for nearly 50 years. Today, abortion is entirely banned in 13 states — home to an estimated 17.8 million women of reproductive age — and banned before viability in another 11 states. 2 Researchers estimate that a nationwide abortion ban could lead to a 24% increase in pregnancy-related deaths and a 39% increase in pregnancy-related deaths among Black women. 3 Across our country, women who've survived a delay in vital care due to abortion bans have gut-wrenchingly recounted their stories, and journalists have reported the stories of women who’ve lost their lives. This politically manufactured crisis is unacceptable. Under your leadership, the Administration has worked to defend and increase the accessibility of FDA-approved medication abortion, defend emergency medical care and interstate travel, strengthen health data privacy, and share accurate reproductive rights information. Together with Vice President Harris, you made reproductive freedoms a cornerstone of the Presidential campaigns. In light of the incoming administration, each of these advances is under imminent threat. The publication of the ERA in the Constitution will provide a vital tool in the continued fight to protect, restore, and advance reproductive rights and justice- one that cannot just be rolled back with a change in government composition. In 2024, we saw the prospective impact of the ERA on reproductive rights. In January of this year, the Pennsylvania Supreme Court ruled that, under Pennsylvania’s ERA, which uses the same language as the federal ERA, abortion providers could challenge the state’s ban on Medicaid coverage for abortion as sex discrimination. 4 In March, a Nevada trial court also ruled that this Medicaid coverage ban violated Nevada’s ERA and, in September, required the state’s Medicaid program to cover abortion care services. 5 The Equal Rights Amendment could help protect and restore the right to abortion. Your legacy protecting women’s rights stretches back to your Senate days as a champion and author of the Violence Against Women Act (VAWA), the decades you’ve spent implementing and strengthening this legislation, and your time as President taking actions to address gender-based violence (GBV). As you know well from your years of service, intimate partner violence and GBV continue to be endemic in the United States. More than 40% of women have experienced violence or stalking by an intimate partner in their lifetime. 6 At the heart of VAWA was a provision for a civil remedy for victims of GBV to sue their attackers. When the US Supreme Court struck this down in 2000, it asserted that Congress lacked the constitutional authority to provide a civil remedy against perpetrators of gender-based violence under the Commerce Clause of Section 5 of the Fourteenth Amendment. 7 The Equal Rights Amendment would grant Congress the authority to pass laws addressing GBV. You also know the vital role that equality plays in striving to build a more perfect democracy. In 2023, you co-hosted the historic second Summit for Democracy, culminating in a Declaration enumerating several international commitments, including equal protection of women’s rights under law. 8 The past four Women’s Equality Days, your White House proclamation has spoken to enshrining the principle of gender equality in our Constitution. Mr. President, you have the power to make that happen. In August, the American Bar Association (ABA), the largest voluntary association of lawyers globally, with the mission of defending liberty and pursuing justice, held its annual meeting. There, the ABA adopted a resolution recognizing the Equal Rights Amendment as the 28th Amendment to the US Constitution and urged its implementation. In doing so, the ABA warned that, without the ERA, the US Supreme Court has indicated that Fourteenth Amendment sex-based equal protection is in “grave peril.” 9 In October, the American College of Obstetricians and Gynecologists, in coordination with six medical societies, called on your Administration to do everything in your power to finalize the Equal Rights Amendment to help realize the right to reproductive health care. 10 In November, the Reproductive Health Coalition, a wide range of health professional associations and reproductive justice and other allied organizations, led by the American Medical Women’s Association and Doctors for America, issued a statement urging you to direct publication of the Equal Rights Amendment to address the worsening healthcare crisis. 11 Today, 78% of Americans favor adding the Equal Rights Amendment to the Constitution. 12 We recognize the complexity of this issue. However, the continued punting of responsibility to formally recognize the only duly ratified constitutional amendment not to be added to the Constitution undermines the Constitution itself, the ratification rights of the states, the integrity of our democracy, and urgently, the liberties and lives of more than half of our population. The undersigned organizations implore you to move beyond politics to take swift action on this urgent issue before our democracy is further eroded and more lives are lost. We deeply appreciate the leadership and consistent commitment you have shown for sex and gender equality throughout your lifetime of public service. As we carry that mantle at a pivotal time in our history, we fervently implore you to seize this historic opportunity and enshrine sex equality into our Constitution. This can be your legacy. The health, rights, and future of our democracy depend on it. For questions, please reach out to Jessica Jones Capparell, director of government affairs at the League, (jjones@lwv.org), Rebecca Goldman, justice reform legislative and policy manager at the League (rgoldman@lwv.org), and Nicole Vorrasi Bates, executive director of Shattering Glass (nvbates@shatteringglass.org). Sincerely,

December 4, 2024 President Joseph R. Biden The White House 1600 Pennsylvania Avenue, NW Washington, DC 20500 Re: Certify the ERA Now! Dear President Biden: We are writing on behalf of Women Lawyers On Guard Action Network, Inc. and the National Association of Women Lawyers, two nationwide organizations that together represent the voice of hundreds of thousands of lawyers. Women’s rights are under attack in ways we have not seen in generations. Pregnancy in states with abortion bans has become a death sentence for some women and, with the criminalization of women’s health care, more will die. Medical students and residents in states with abortion bans are not getting the training they need in order to give women the accepted standard of care, and “maternal health care deserts” are now a reality. Some in the GOP seek to erase more than 100 years of history. Some propose repealing the 19th Amendment, which enshrined women’s right to vote in the Constitution. In this environment, the Equal Rights Amendment (ERA) is more important than ever. The operative language in the ERA simply 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. The ERA has now been ratified by the requisite 3/4 of the States required by the Constitution. We call upon you to complete the Constitutional process and instruct the Archivist of the United States to certify and publish the ERA now. Generations of women (and men who support them) have fought for laws to allow women to have a job outside the home, own a home, obtain a loan or credit card, and get the health care they need. However, these laws at best are a patchwork which can be narrowed or even repealed. The President or the Executive Branch at the federal level and other governments (state, local) can refuse to enforce them. Congress can tell DC and the Territories what their laws on these issues should be. Courts can narrow them — or as with Dobbs , erase decades of freedom. First proposed by Alice Paul in December 1923, the ERA was introduced in every session of Congress from 1923 through 1970, but was bottled up in Committee for decades, with Committee Chairs refusing to bring it up for a vote. In 1970, Congresswoman Martha Griffiths (D., Mich.; 84th-93d Congresses; Chair, Ways & Means) filed a discharge petition which upon passage brought the ERA to the floor of the House of Representatives where it passed. Although the Senate failed to approve it that year, the next year bipartisan majorities in both Houses of Congress passed the Amendment overwhelmingly, far exceeding the 2/3 majority required in Article V of the U.S. Constitution. Six states ratified the Amendment within six days of Congressional passage on March 22, 1972. By the end of 1973, 30 States had ratified it. By the end of 1977, 35 States had ratified the ERA, but then progress stalled. Decades later, with the momentum created by the Women’s Marches and the #MeToo movement, Nevada and Illinois ratified; and on January 27, 2020, Virginia became the 38th State to ratify the ERA, reaching the 3/4 of the States required by the Constitution. As set forth in the Constitution, the ERA became part of the Constitution when Virginia ratified it in 2020. The Executive Branch has no role in the amendment process, as shown by a plain reading of Article V. The only remaining requirement necessary now to add the ERA to the Constitution – where it belongs – is publication and certification by the Archivist of the United States, as has been done with the other 27 Amendments to the Constitution. We call on you in your remaining days in office to instruct the Archivist of the United States to certify and publish the ERA now . There is no reason that the Archivist has failed to take this ministerial step. Legislators in Congress have introduced resolutions recognizing that the ERA has been validly ratified, and it should be published and certified by the Archivist. In August 2024, the American Bar Association, the world’s largest voluntary association of lawyers, adopted a policy supporting certification and formal addition of the ERA to the Constitution. Contrary to its opponents’ arguments, States cannot rescind their ratification of a Constitutional Amendment. The ratification process is silent on any right to rescind, and there is no such implied right in the text or case law. Even an “originalist” reading of the Constitution and its related history confirms this point. No less a commentator on the subject than James Madison himself, in a letter dated July 20, 1788 to Alexander Hamilton, declared that ratification is “in toto and forever.” 1 Indeed, some States attempted to rescind their ratifications of the Fourteenth and Nineteenth Amendments, but neither Congress nor the Executive Branch recognized those attempts. Thus, assertions by States that they want to rescind their earlier ratifications of the ERA should not be allowed to hold up the addition of the ERA to the Constitution. As the text of the Constitution and legal scholars confirm, purported rescissions of votes ratifying the ERA are null and void. In addition, the Constitution includes no provision requiring that ratifications be “contemporaneous” with each other, and any such provision purporting to impose such a time frame is superfluous. This is shown by the plain language of Article V which contains no such timing requirement. None is found in the text of the Amendment itself and so the 38 States that voted to ratify the ERA did not vote on any such timing requirement. Another Constitutional Amendment, which included no timing requirement, received its final ratification in 1992, more than 200 years after Congress first sent it to the States for ratification — in 1789. That Amendment, now the 27th Amendment, is nicknamed the “Madison Amendment,” after Founding Father James Madison who first proposed it. The Amendment, which precludes a sitting Congress from voting on its own compensation, was ratified by six States between 1789 and 1791, but then sat dormant for almost 200 years before States in the 1980s began once again to ratify it. The Archivist did not hesitate to publish and certify the Madison Amendment once it received ratification from the 38th State, thus confirming its rightful addition to the Constitution in 1992. The 48-year time period here for the ERA pales in comparison to the 203-year period between the first and last ratifications for the 27th Amendment. Under the Constitution and relevant statute (1 U.S.C. § 106b), the Archivist should now publish and certify the ERA now. We ask that you call on the Archivist to complete that administrative task immediately, confirming the addition of the ERA to the Constitution as the 28th Amendment.  Respectfully,

August 15, 2024 Sixty Years Later, DEI Advances the Ongoing Work of the Civil Rights Act of 1964 Bar Association Presidents from Across the Nation Call on Leaders to Double Down on DEI As presidents of the nation’s largest diverse national bar associations, we invite general counsel, law firm managing partners, leaders of government and nonprofit legal services organizations, and law school deans to stand with us as we fight for justice and opportunity for all. Your support and partnership are even more critical now given the attacks on diversity, equity, and inclusion (DEI) from some segments of our country. As lawyers, we are guardians of the rule of law and leaders in our communities and in local, state, and federal government. For these reasons and more, we ask that you continue to be strong advocates for DEI in our profession. Our work and efforts can also support the importance of DEI more broadly. Honoring the Legacy of the Civil Rights Act of 1964 This year marks the 60th anniversary of the Civil Rights Act of 1964. This sweeping Act did more to bring us closer to our ideals, that we are all are created equal, than any other legislation in our history, and it set the groundwork for landmark legislation that followed it such as the Americans with Disabilities Act (ADA). Although many Americans today might take for granted the significance of passing this legislation, it was a hard- fought victory. Most of us recall Dr. Martin Luther King, Jr.’s address at the 1963 March on Washington for Jobs and Freedom. His reference to “the fierce urgency of now” was intended to push President Kennedy and Congress to move on the stalled legislation. When the legislation finally passed, close to thirty percent of the House of the Representatives and the Senate voted against it. It is not lost on us that many of the states now passing anti-DEI legislation also included the bulk of the Representatives and Senators who opposed the Civil Rights Act of 1964. Progress Through Partnership As a nation, we have made significant progress in the past 60 years because of the blood, sweat, and tears of those who have come before us. In the past and continuing to this day, there have been Americans of goodwill who believe that we are a better nation when all Americans can aspire to their highest ambitions, including becoming President of the United States. DEI is Consistent with the Spirit of the Civil Rights Act of 1964 and Essential in Today’s Workplace Although some claim that DEI initiatives are illegal or unconstitutional, the vast majority of DEI initiatives are designed to increase access and opportunity, while minimizing bias and barriers. The work is fully consistent with the spirit and intent of the Civil Rights Act of 1964. It also brings greater meritocracy to our workplaces. How can there be meritocracy in workplaces if there are insufficient efforts to recruit exceptional talent from all communities, or when there is unintended bias in our processes related to hiring, work assignments, and promotions, or when some people have greater access to formal and informal networks that result in greater opportunities? These are just some examples of issues that DEI efforts are designed to address. Again, the overwhelming majority of DEI efforts are not only legal, but essential in today’s workplace. This is why it is critical to stand firm on the importance of DEI and be strong advocates in your corporations, law firms, and universities. Progress, but Much Work to Be Done Although we have made progress, there is still much work to do. According to the US Census Bureau and 2023 Gallup polling, communities of color presently represent about 41% and LGBTQ+ people represent about 7.6% of the US population. Individuals with disabilities currently represent more than one in five Americans. But recent studies from the American Bar Association, Minority Corporate Counsel Association, and the National Association for Law Placement (NALP) show that people of color only account for about 21% of lawyers in the US, 15% of Fortune 1000 general counsels, and 12% of law firm partners; likewise, LGBTQ+ people only account for 4.6% of lawyers in the US, and 2.6% of law firm partners. Individuals with disabilities account for only 1.4% of the legal profession and 1.1% of law firm partners. Further, according to studies from the American Bar Association and NALP, women comprised almost 50% of law school classes in 2000, yet today, women comprise less than 28% of law firm partners. Looking at these numbers, it’s impossible to conclude that we’ve achieved the type of success that would warrant pulling back on our efforts simply because there is opposition. Those who came before us faced even greater opposition and hostility. We owe it to them and those who are coming behind us to keep working to ensure a fairer workplace and more just nation. Allying Together for Greater Equality, Access, and Opportunity for All. Finally, there is an economic argument for supporting DEI. When all our communities do well, we have more people contributing to the economic growth and prosperity of our country. A rising tide lifts all boats. Whether our ancestors were this country’s indigenous people, or pilgrims on The Mayflower, or kidnapped Africans on slave ships, or freedom-searching immigrants arriving at Ellis Island or Angel Island, or any of the many others seeking refuge and a new life in a new land, we are all in the same boat now. We are all Americans. Our country is already one of the most diverse nations in the world, and it will continue to become even more diverse. And the exceptional achievements of our country, economically, militarily, and socially, are the result of people from all over the world who have come here and made this country home. As we move forward together, we can show the world what a pluralistic democracy can accomplish. Now is the time for leaders and people of goodwill to stand together for greater equality, access, and opportunity for all. Together we can ensure that America lives up to its ideals, where all people are created equal and have the opportunity to achieve the American dream.

MARCH 29, 2021: NAWL has joined the National Women’s Law Center, their law firm partner Linklaters LLP, and 30 other organizations including the Women’s Law Project, in filing an amicus brief in the Second Circuit Court of Appeals in support of Nicole Chase, a 27-year-old single mother and restaurant worker who was sexually assaulted by the restaurant’s owner. Our brief highlights the ways gender bias by law enforcement, including reliance on harmful sex-based stereotypes, not only leads to failures in sexual assault investigations but also compounds the trauma of sexual assault for survivors. The brief also discusses how gender bias in law enforcement’s response to sexual assault – as was clearly evidenced by the police in this case – may violate the Constitution’s protections against sex discrimination.