In the final episode of the Ms. Studios podcast Looking Back, Moving Forward, ERA Project director Ting Ting Cheng breaks down the power of state Equal Rights Amendments—and how activists and lawmakers can leverage them to build a stronger foundation for federal constitutional equality for everyone.
Ting Ting Cheng has dedicated her career in law to advancing justice—from work litigating gender discrimination cases at Legal Momentum to serving as Legal Director for the history Women’s March on Washington in 2017. Since 2021, Cheng has led the Equal Rights Amendment (ERA) Project at NYU Law’s Birnbaum Women’s Leadership Center, and formerly at Columbia University. As director, Cheng shapes the strategic research and guidance the Project provides, including a roadmap for state ERA implementation and enforcement.
As part of the fifth and final episode of the Ms. Studios podcast Looking Back, Moving Forward, I talked to Cheng about the power of state ERAs, especially in a moment as perilous at the national level for gender justice as this one, to advance a feminist agenda and reshape our legal notions of equality.
Cheng is joined in this episode by former Nevada state Senator and ERA champion Pat Spearman, Feminist Majority Foundation president and ERA movement leader Ellie Smeal, Ms. executive editor Katherine Spillar, and trailblazing politician and diplomat Carol Moseley Braun.
Together, we reflected on more than 50 years of activism to ratify the ERA—and the power that would come from women’s constitutional equality to redefine our democracy, protect our fundamental rights and change the stories of women’s lives.
This interview has been edited for clarity and length.
Carmen Rios: Where does your ERA journey begin? What has your engagement with this issue, this activism, and leadership on the ERA, looked like for you?
Ting Ting Cheng: I was born in China—I’m an immigrant—and I grew up there until the age of 8 or 9. My ERA journey began in childhood in China. Even as a really young kid, my first memory, I was really troubled by the glaring inequality that I was seeing around me, where it seemed very arbitrary that people’s status and resources and who they were and their value was often determined by factors beyond their control—like their sex and gender, their birthplace, their family background—especially in such a deep classist society in China.
This disparity was starkly evident in the lives of my two grandmothers. My paternal grandmother was one of the first women in China to earn a law degree in 1932—when most women in America couldn’t go to law school—and she came from this really elite and educated family and had access to education, although she had to fight for it, and she was just a really impressive role model. She taught me a lot, and she raised me. In contrast, my other grandmother, my mother’s mother, also raised me—but she lived in a really remote area in China near the North Korean and the Russian border. She never had a formal education, was illiterate, worked as a farmer, and her marriage was arranged. She was equally impressive and vital to her family and community, obviously.
At that age, it seemed really unfair that these two people that I really looked up to and who really cared for me were treated so differently by society—and the fact that there’s inequality and discrimination and that those things are deemed acceptable deeply disturbed me, and disturbs me to today. That early childhood feeling sparked my commitment to advocating for equality and focusing on human rights and social justice work in my career.
Every single step forward is vulnerable to rollback. These advances are hostage to the political process. They’re subject to contraction rather than expansion, depending on who holds power and regardless of what the needs are on the ground—and that’s just not how democracy should work.
Ting Ting Cheng
Fast-forward to 2016: I’m a public defender in Brooklyn, focusing on criminal and immigrant defense work, representing indigent clients, and that year, I experienced two life-changing events. I had my first kid, and I witnessed the election of Donald Trump while I was on maternity leave.
Around this time, a group of my friends wanted to organize a protest in response to the election results, and asked me to serve as their legal director. That effort grew into the Women’s March of 2017—which, as a lot of us know, became the largest single-day protest ever organized. The march, becoming a parent, and Trump’s election—unfortunately—deeply affected me, and clarified a desire to focus on gender justice.
I noticed that gender justice work was often fragmented with organizations concentrating on specific issue areas, like reproductive rights or workplace discrimination or pregnancy and so on. What I was looking for was a comprehensive approach to addressing systems change and systemic inequalities. That led me to the ERA work and the ERA Project, which was founded at Columbia Law School in 2021, which focused on systemic change through the finalization of the Equal Rights Amendment to envision a more just society, regardless of sex and gender. Recently, our project transitioned to NYU Law, where we continue to advocate for a holistic overhaul of a longstanding, broken constitutional system.
Rios: What do you believe or hope is the promise of the ERA? Obviously, it’s this really powerful symbol to have constitutional equality, but in terms of the nuts and bolts, our everyday lives, what do you believe the ERA can and will make possible?
Cheng: Things are pretty dire right now. Our institutions are crumbling, and we have branches of the federal government operating with near absolute immunity and a Supreme Court that actively advances conservative ideology, and also, the implementation of Project 2025 is proceeding at a pace that’s really scary. The reason why the ERA is so critical in this moment for gender justice and for equality in general is, first of all, it’s about protecting the gains of the past over 50 years. Even though we’ve made remarkable strides in expanding our understanding and definition of sex and gender discrimination without explicit constitutional sex equality provisions, protection, every single step forward is vulnerable to rollback.
These advances are hostage to the political process. They’re subject to contraction rather than expansion, depending on who holds power and regardless of what the needs are on the ground—and that’s just not how democracy should work.
After ‘Dobbs,’ the reality is that the erosion of sex equality is not going to stop until women and gender minorities and anyone who refuses to conform to traditional views on gender is, legally, a second-class citizen. When we’re looking at the history of gender discrimination in this country, I would say overt sex-based discrimination has, largely, disappeared from the language of our laws—but, obviously, the discrimination hasn’t gone away. In a lot of ways, it’s gotten worse.
The discrimination is concentrated, most clearly, in restrictions on abortion, reproductive rights, and bodily autonomy right now. Before ‘Dobbs,’ legislators could hide behind their claims that their laws were serving women and protecting children and so on, but after ‘Dobbs,’ when the Supreme Court has dismantled reproductive rights and taken away a fundamental right that we all relied on for over 50 years, and basically left it up to the states, the conservative agenda that they had was laid bare. Things like TRAP laws and abortion bans are revealed for what they actually have always been—which is deliberate discrimination against women.
This is where the ERA becomes essential. It is a long-term project in a moment where it seems like we all struggle with thinking beyond short-term, reactionary policymaking.
It’s doing the work, it’s building the pieces of fundamental equality case by case, state by state, that gives me a lot of hope.
Ting Ting Cheng
We need a long-term vision to achieve systemic equality in the face of ‘Dobbs,’ in the face of ‘Skrmetti,’ in the face of Trump’s executive orders on gender ideology—and we need that vision to be inclusive, intersectional, and embrace Democratic principles, rather than reduce them.
The ERA is a practical tool for accountability. In terms of everyday impact, the ERA would, fundamentally, change how our systems operate. Instead of elected officials engaging in the deeply polarizing political warfare that we’re used to now, the ERA would mandate and force elected officials to actually do their jobs, to analyze laws and policies that cause inequality, and to come up with effective solutions. We do that all the time in the context of budgets, fiscal policy, environmental policy, voting rights. We need to do that for gender equality. There’s no reason why we don’t do that already.
And then, bigger scope, the ERA demands, from all of us, to be creative and to imagine and to build a system that can actually deliver equality to all people, regardless of sex and gender. Again—for the most part, we’re not going to see laws written in an overtly discriminatory way today. But clearly, gender discrimination is baked into the system. With the constitutional mandate under the ERA, the conversation that we should be having right now is: How do we reshape legislation and governance at every level, exactly like what the current administration is doing right now, in the opposite direction? The ERA represents both a response to the crisis moment that we’re in right now and a longer-term roadmap for a more just future.
Rios: In this crisis moment, in every episode that I’ve done, the interviews come back around to the states. We’ve focused often on the national level—national legislation and national priorities. That’s important because then there’s not a patchwork of laws that determine your experience state-by-state. But at the same time, we know this is not a great time to be pushing for that stuff on the national level, and we’re seeing all this destruction coming down. The need for state-level policy is increasing, and the ERA Project is leading the call for state ERAs.
What power do you believe these state ERAs have? How can an ERA in any state be a tool for advancing gender equality?
Cheng: The fact that we have 50 states, every state has its own constitution, and courts that interpret the rights and strike down laws independently of federal courts, is incredible—and holds a lot of potential for protecting and advancing our rights, and previously, was considered underutilized.
State constitutions can, and often do, provide more protections than the federal Constitution. They’re also more responsive to on-the-ground needs. They’ve been amended over 7,000 times, compared to just the 28 federal amendments [including the ERA] that we’ve seen. Many contain what we call self-executing provisions that operate more like statutes—and unlike the federal Constitution, which only applies to government actors, some state constitutions can extend to private actors, like businesses, so even broader scope for attaining rights.
Inequality isn’t just about getting rid of existing discriminatory laws… We have to fundamentally rethink how we distribute resources in society. We have to take a harder look at the real disparities and barriers that people face
Ting Ting Cheng
Since ‘Dobbs,’ we’ve seen state courts increasingly decide whether their constitutions protect reproductive rights, and we see the trend toward adopting inclusively-worded modern ERAs, like what happened in Nevada and in New York and Delaware, and also, we see similar efforts, although not yet passed, in Minnesota and Maine, to go beyond the language of the federal ERA, to prohibit discrimination based on abortion access, pregnancy discrimination, bodily autonomy, race, religion, age, disability and immigration status.
State ERAs are defining equality in real time, and the meaning-making that’s coming out of the states right now will inform the legal foundation for how a federal ERA will be and should be interpreted. Over half the states already have state-level ERAs, and efforts are ongoing to add more, and unlike the federal ERA, state ERAs are not in dispute. There are no lawsuits challenging whether state ERAs are a thing or not, but they are underutilized and underconsidered, historically.
The recent development, especially post-‘Dobbs,’ and how state ERAs were being proposed and added to state constitutions as a direct response to ‘Dobbs,‘ gave us a lot of hope. We’re seeing successful challenges to abortion funding bans in Nevada and Pennsylvania under their state ERAs, and ongoing litigation in Utah, which has one of the oldest state ERAs in this country, to challenge their current abortion bans. In New York, there are some cases that are being challenged right now on pregnancy policing using the new state ERA, which is very inclusively worded. I think it can be used as a resistance to federal overreach in the immigration context.
State ERAs are real tools, and give us a lot of hope for the future.
Rios: You put a model agenda together at the ERA Project of realizing sex equality for states that do have Equal Rights Amendments in their constitution—and you make three major recommendations. Can you walk us through the roadmap that you lay out for these states, and the intentionality that went into identifying those priorities?
Cheng: We launched our Model Policy Agenda in 2024. The goal was to turn the focus on states, and to build a ground-up approach, and develop a robust equality infrastructure at the state level, in partnership with elected officials—particularly when we see our fundamental rights being dismantled at the federal level, and we see, increasingly, abortion bans and bans on transgender-affirming case for minors being proposed in different states. We wanted to hopefully not propose something that was too abstract or academic, but provide an actionable roadmap for state and local policymakers to make sex equality a reality under their state ERAs. This is very high level, because it’s about rethinking how, systematically, we can approach gender justice and sex inequality, rather than specific issues, although we go into that, as well, in the report.
The first high-level recommendation is to have gender impact assessments, which would evaluate how current and proposed laws would affect groups based on sex and intersecting identities. Again, similar assessments already exist and are frequently utilized in the environmental protection spaces, fiscal policy, voting rights.
This would serve as a litmus test for ERA compliance. State ERAs have been added to constitutions and celebrated as a victory and sort of a symbolic win, without anything really happening afterwards. This is a real challenge for elected officials to implement state ERAs, to identify potential discriminatory effects before laws are enacted and to ensure that they advance rather than hinder gender equality.
The second recommendation is to create oversight bodies for implementation to ensure that there are institutional mechanisms to monitor compliance, and to integrate these ERA principles throughout government operations.
The third are affirmative policy initiatives.
The obligation is on elected officials to actively level the playing field—and this means addressing visible inequalities and hidden inequalities, not just what’s written in the laws, but also to think through what contributes to inequality, beyond what the law says. Let’s talk about resource distribution. Why are there really stark, disparate outcomes in things like maternal mortality rates, and why is it so hard to close the gender pay gap and so on? The ERAs are here for elected officials to lean on to start to design comprehensive solutions that address deep structural issues that impact gender justice and beyond.
State ERAs are defining equality in real time. The meaning-making that’s coming out of the states right now will inform the legal foundation for how a federal ERA will be and should be interpreted.
Ting Ting Cheng
Rios: What’s the measurable impact that we’ve seen these ERAs have? What policies are usually taking shape after a state gets an ERA—or as states with ERAs face what’s happening nationally?
Cheng: It’s crucial to make ERAs concrete and translatable to help people understand them as real tools, especially in areas that are quite stark right now, like in reproductive rights and healthcare access and the healthcare economy and the promotion of economic equality and resource distribution. The work that we do is to also think through the framework for what equality should be, to actually promote equality and to create fertile grounds to promote those kinds of equality measures.
Let’s take it a step back here. Under current federal law, equality jurisprudence just means treating everybody the same, regardless of your circumstances or the social and economic disparities that you may face. This is a really narrow interpretation that the Supreme Court, this current conservative Supreme Court, has adopted, which we call formal equality. It’s kind of like saying if you have an apple and I have an apple, then we are equal. We’re done. End of the analysis.
We’ve seen this framework in the way that the 14th Amendment’s Equal Protection clause has been interpreted in recent decades to be weaponized to restrict equality, and in the context of the defeat of Affirmative Action measures that were designed, in the first place, to enhance equality, and not restrict it. The opportunity of state ERAs is to tackle very important issue areas, but, taking a step back, it’s also an opportunity to embrace a different kind of equality framework—and this is nothing new. A lot of countries embrace something called substantive equality.
If you look at the South African Constitution, what to do post-apartheid and to make sure that something like the legal regime of apartheid can never been erected in South Africa, is that in order to achieve real equality, you have to acknowledge and address existing disparities first, and not just think about creating identical treatment.
We need a long-term vision to achieve systemic equality in the face of Dobbs, in the face of Skrmetti, in the face of Trump’s executive orders on gender ideology—and we need that vision to be inclusive, intersectional, and embrace democratic principles, rather than reduce them.
Ting Ting Cheng
I don’t think that we, as advocates and even feminists scholars, agree that the current equality framework that federal courts follow, that the Supreme Court is implementing to disastrous effect, that impacts the lives of millions, is the framework that we should be following. That’s why our recommendations are trying to move things toward more of a substantive equality framework from, like, a systems change perspective. It’s really critical for all of us to understand that, like, again, inequality isn’t just about getting rid of existing discriminatory laws. Doing so is so necessary, but it’ll only get us so far. We have to fundamentally rethink how we distribute resources in society.
We have to take a harder look at the real disparities and barriers that people face, such as, obviously, the ability to decide whether, when, how, if you want to start a family, universal access to healthcare, a supportive childcare economy, equal pay—and, also, to understand them as interconnected systems and not as separate issues that, together, perpetuate inequality. Legal equality, just how the laws are written, will not overcome deeply-entrenched structural barriers. Issues like adequate childcare for working parents or insufficient paid family leave policies, the persistence of gender-based violence—all of these things create systemic disadvantages that formal equality simply cannot touch.
Our agenda and the focus of the agenda of the state ERAs, and the federal ERA, too, should be on what true equality requires. Economic support systems that enable equal participation, safety measures that protect against gender-based violence, healthcare access that addresses gender-specific needs, and work-life balance policies that don’t penalize people for caregiving—these are not extras. They’re also not beyond the scope of legal change. They’re essential building blocks for real equality.
State ERAs also need to address how sex intersects with race, with class, and with other identities—immigration status, disability—to address how multiple identities compound injustice. The post-Dobbs state ERAs that we’re seeing are broadly worded and inclusive, which is incredible, and they take a holistic view of discrimination beyond gende. This intersectional approach will, ultimately, play a critical role in eliminating gender inequality.
ERAs, because they’re an amendment to a constitution, they are, by definition, new rights that amend the constitution, rather than adding to a constitution for the purpose of affirming what’s already there—like creating a pink 14th Amendment. We want the ERA to revolutionize governance. Rather than fixing discrimination after it happens, we want it to have it be a preventative framework, meaning that discrimination rarely makes it to implementation. There’s also this anticipatory approach that should be standardized practice to reduce the harm that’s caused.
Rios: And we can see, in this moment, how important that is.
Cheng: There are really harmful policies from the first Trump administration that we’re still trying to undo, like in the immigration context. Somebody once said to me about this that, ‘Once the egg has been scrambled, it’s almost impossible to unscramble the egg,’ and that’s true. We have to prevent harm.
Rios: For folks in states without ERAs, how would you advise they begin building a movement to advance one? In states with ERAs, what do you think activists need to be doing to really leverage them?
Cheng: Is that my new project? Create a state implementation ERA playbook? Because it’s so essential, and the trend is strong. It’s definitely a movement to add more state ERAs to state constitutions.
For states without ERAs, success starts with on-the-ground coordination—building a big tent coalition where there are diverse stakeholders, including advocates and grassroots organizers and elected officials and youth, align behind a unified vision of what their ERAs ought to look like before the campaign can truly take shape. It’s obviously about agreeing to pursue an ERA, but beyond that, defining the scope, the language, the priorities together from the beginning, and looking at recent successes, like in Nevada and in New York and in Delaware, and comparing and contrasting. Connect with the organizers from those campaigns. Learn from their invaluable, hard-earned wisdom about messaging, coalition-building, and navigating the opposition. In New York, the opposition was very strong and quite coordinated. Every state has unique political landscapes, but the tactical lessons really translate for any movement.
Economic support systems that enable equal participation, safety measures that protect against gender-based violence, healthcare access that addresses gender-specific needs, and work-life balance policies that don’t penalize people for caregiving—these are not extras. … They’re essential building blocks for real equality.
Ting Ting Cheng
For states with existing state ERAs, this is the moment to activate them. These aren’t decorative constitutional provisions. They’re powerful tools waiting to be used. Activists should be identifying strategic test cases, pushing for gender-impact assessments in policymaking, oversight bodies, and demanding that elected officials fulfill their ERA mandates, make their ERAs work—and, again, challenge discriminatory funding structures. Push for paid leave policies.
Be creative, and think about how inequality exists in areas that fall outside of the gender justice discussion—in tax policies, in other areas that we don’t, traditionally, think about as gender justice. The key to both scenarios is to make these ERAs tangible and urgent, to connect ERAs to issues that people are facing right now, and to show how an ERA isn’t an abstract constitutional theory, but a real practical tool to solve real problems.
Rios: In this challenging moment, what keeps you hopeful about the ERA movement that you see in your work every day?
Cheng: The discussion right now has to do with the rule of law and whether democratic principles are worthy of defending and protecting, in this moment. I see a lot of institutions backing down and also capitulating when they should be resisting—and what else do we have but the ERA right now, and state ERAs?
With the federal ERA, the time will come when we all are going to agree that it’s in the Constitution, and we’re going to start implementing it—but for now, given the composition of the federal government, it’s a really ripe opportunity to focus on state ERAs.
It’s doing the work, building the pieces of fundamental equality case-by-case, state-by-state, that gives me a lot of hope. The youth-led movements give me an extraordinary amount of hope, because it’s been over 100 years in the making, and it’s intergenerational. The mistakes of the ERA movement and the women’s rights movement at-large in the past has been one of focusing too much on incremental change, led by people who really saw success as defined by white women’s proximity to white men in power—whereas right now, ERAs were revitalized.
When the deadline for the federal ERA expired in 1982, most people gave up on the ERA, and thought that it died, and thought that the movement failed—but we’re here today because of the efforts and the vision of Black, queer state legislators in Nevada, in Illinois, in Virginia. ERAs have, from the beginning, been thought about as intersectional tools, by thinkers like Pauli Murray. This movement actually gives me a lot of hope—and the direction of the movement, the people of this movement, and the way that we’re turning our back to the past and saying, ‘We have to build it from a place of inclusivity, and not replicate mistakes of the past,’ give me a lot of hope.
Rios: This podcast looks back on sort of 50-plus years of Ms. and ERA activism. What do you hope changes in the next 50 when it comes to equality, when it comes to the ERA, and when it comes to this fight for the feminist future?
Cheng: 50 years is a long time, so I don’t think I’m being overly ambitious when I sort of say, in 50 years, I want to see this constitutional revolution through the ERAs bear fruit. We should be seeing all 50 states with state-level ERAs that go far beyond binary gender protections. All 50 states would have ratified the federal ERA and mandated affirmative equality measures.
I think the work that we’re doing right now, with the Model Policy Agenda, should become standard government infrastructure as routine as anything else that’s been embedded in the government. The federal ERA, by then, will be broadly recognized. There won’t really be a dispute about that, and will be interpreted through this progressive state-level lens that we’re establishing. I would like to see the courts shift from a formal to a substantive equality framework. Maybe in 50 years, we’ll be very old ladies having a laugh at the idea that, in 2025, equal treatment once meant ignoring systemic disadvantages and that, in 50 years, equality could and should mean active redistribution of resources and equal power.
The ERA represents both a response to the crisis moment that we’re in right now and a longer-term roadmap for a more just future.
Ting Ting Cheng
Intersectional analysis in all policymaking should be normalized in 50 years. I don’t think gender should and could be discussed in isolation from race, class, disability, immigration status, or sexual orientation, and post-‘Dobbs,’ we’re crafting that blueprint for this future. In 50 years, I’d really like to see that be a part of everyday conversation. I also think that, in 50 years, we’re going to see the constitutionalization and revolutionization of economic rights in the childcare economy. In 50 years, hopefully, access to childcare will be understood as a constitutional right necessary for gender equality—just as education is today.
The care infrastructure should be publicly funded and universally accessible, because our work will have proven that it’s impossible to achieve gender equality without it. Care work will be valued, compensated, and shared equitably across genders. The GDP should include care work and that corporate structures will just assume that all workers are caregivers, whether parents or caregivers of parents and loved ones. And obviously, I think reproductive rights should be at the floor and not the ceiling. The victories that we’re achieving today to expand full reproductive justice will include not just access to abortion, but constitutional guarantees for prenatal care, birth support, parenting resources.
The legal framework for gender equality needs to evolve beyond binary gender categories, just protection of men and women. There needs to be inclusive language in the state ERAs that we’re promoting now that paves the way for constitutional protections that recognize gender fluidity and protect gender identity and expression seamlessly.
Our vision for the ERA today—where equality is operational, intersectional, is embedded in every aspect of the government—in 50 years, will be the baseline from which future generations can build.
I read Ezra Klein’s ‘Abundance’ a couple months ago, and it just occurs to me that what we need in this movement is this framework of abundance. Perhaps our struggles come down to the fact that, unfortunately, gender justice has been underfunded. We don’t have enough resources to do the work that we’re doing, and a lot of us are doing the work for free or being underpaid and undersupported.
And yet, we persist—while we’re also, like, doing a lot of childcare and caregiving and parenting, again, for free. That’s not acknowledged by the wage labor market. There has to be a coming together of an abundance mindset and framework. The positive outcome of the pandemic is this idea of community and mutual aid and support. Community-based support will make us stronger and help us get to our goals faster.
Great Job Carmen Rios & the Team @ Ms. Magazine Source link for sharing this story.
