SIDEBAR: TikToks, Tradwives, and a Constitution That Doesn’t Say Women Are Equal
Do we still need the Equal Rights Amendment?
SIDEBAR is my occasional op-ed series on unfolding constitutional controversies. These pieces step outside the usual analysis to weigh in on the news of the moment.
Recently, my feed has been a whiplash of contradictions. One moment, a soft-lit “tradwife” praised the joys of submitting to her husband and baking from scratch. The next, a viral TikTok featured college students belting out Taylor Swift’s The Man, lamenting the double standards women still face in public life. The cultural whiplash isn’t just about aesthetics—it points to a deeper tension between how gender operates in our culture and how it’s addressed in our laws. And nowhere is that tension more vivid than in the long, unfinished story of the Equal Rights Amendment.
The ERA is short and clear: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Congress passed the amendment in 1972. Since then, 38 states—the number required for constitutional adoption—have ratified it. And yet it’s still not part of the Constitution. Why? Because the original amendment came with a ratification deadline, and that deadline has long since passed. Efforts to revive or override the deadline have stalled in the courts, leaving the amendment in a kind of legal limbo.
Supporters of the ERA argue that it’s long past time to state explicitly in our founding document what most Americans already believe: that women and men should be equal under the law. They warn that without clear constitutional language, legal protections for gender equality rest on fragile ground, vulnerable to shifting judicial philosophies and political winds. The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, is Exhibit A. Roe was based not on a specific constitutional text, but on the Court’s interpretation of privacy and liberty. And when the Court changed its mind, the right disappeared.
Today, gender equality under the Constitution is protected by judge-made doctrine. Courts apply what’s called “intermediate scrutiny” to laws that classify by sex, meaning the government must show that the law serves an important objective and is substantially related to achieving it. That’s a higher bar than the default “rational basis” test, but lower than the “strict scrutiny” standard applied to racial discrimination. Supporters of the ERA say this two-tier system is itself unequal, and that women’s rights should not depend on a legal balancing act that can shift with the composition of the Court.
Opponents of the ERA raise two main objections. First, they argue the amendment is unnecessary. They point to the body of case law that already prohibits sex discrimination and argue that the current standard offers sufficient protection. Second, they worry that the ERA’s broad language—“equality of rights … shall not be denied on account of sex”—could be interpreted to prohibit any legal distinctions based on sex, even those meant to benefit women. Could it jeopardize women’s sports programs, sex-segregated shelters, or scholarships for women in underrepresented fields? Could it be used to challenge accommodations for pregnancy or caregiving as unfair preferences? Critics fear that a rigid reading of the ERA could create new legal uncertainties and undercut policies designed to account for real differences and lived experiences.
But those concerns also point to why the ERA still matters. Much of the modern gender order relies on implicit compromise—laws and policies that reflect evolving norms, but with no constitutional anchor. That works fine when there’s consensus. But in times of conflict or backlash, those foundations can crumble. We are living in such a moment. The rise of tradwife content and the resurgence of “real man” influencers suggest a deep cultural investment in traditional gender roles. Meanwhile, the gender pay gap persists, workplace structures still penalize caregiving, and basic accommodations like paid family leave remain out of reach for millions of Americans. Equality in theory does not always translate to equality in practice.
Taylor Swift’s The Man became a cultural anthem because it captured a broader frustration: that women still face invisible obstacles and double standards, no matter how hard they work or how much progress is claimed. That frustration, expressed in lyrics and lip-syncs, isn’t just a cultural grievance. It’s a legal one, too.
Constitutional amendments are meant to reflect foundational values. They clarify the rules of the road, especially when courts and culture diverge. The ERA wouldn’t end the debate about gender roles, nor would it flatten real differences between men and women. What it would do is provide a clear, enforceable guarantee that sex equality is not optional or subject to political fads. It would give lawmakers and judges a firm standard. And it would give future generations something this one still lacks: a Constitution that says, without ambiguity, that gender equality is a national commitment and not just a cultural aspiration.