The Equal Rights Amendment is a queer movement

BY KATE KELLY

You may have seen many female congressmembers wearing green ERA NOW buttons to the State of the Union Address recently. But, just what is the ERA and who is it for? Why should LGBTQ+ people care?

The Equal Rights Amendment, or ERA, is a simple amendment to the U.S. Constitution, penned by prominent American suffragist Alice Paul in 1923. Its principal clause 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.”

Paul believed American women needed to be explicitly included in the constitution in order to fully benefit from its protection. She was right. Ruth Bader Ginsburg did pioneer legal protection arguments “on the basis of sex” in the 1970s under the 14th Amendment’s Equal Protection Clause. She paved the way for gender to be included along with other categories like race, religion, and national origin as unconstitutional forms of discrimination.

However, unlike these other groups, the Supreme Court determines whether a law amounts to sex-based discrimination at a lower level of “scrutiny.” What does this mean? To this day, it’s still easier for state and federal governments to pass sexist laws and keep them on the books than other categories of discriminatory laws.

Originalist justices like the late Antonin Scalia and his ilk do not believe that the Constitution rightfully protects from discrimination on the basis of sex, at all, even under the Equal Protection Clause.

In 2011, Scalia publicly said, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.” In order for justices like him to concede protection on the basis of sex is valid, women still need to be written directly into the Constitution.

After its introduction in every Congress since 1923, the ERA finally passed in Congress in 1972 to much fanfare and went to the states for ratification. Initially, it had almost unanimous, bipartisan nationwide support, due to the robust women’s liberation movement sweeping the country at the time. But, conservative and religious groups began to whip up anti-ERA fervor, leading the ERA to fall just three states short of ratification in 1982.

In order to defeat such a popular amendment, anti-ERA opposition groups used arguments overlapping with anti- LGTBQ+ sentiment. Phyllis Schlafly’s group “STOP ERA” endlessly beat the drum with cries of its potential to legalize gay marriage (a common scare tactic at the time), and one of the best-known strategies deployed by anti-ERA activists was to stoke the irrational fear of unisex bathrooms. Notoriously anti-LGTBQIA+ organizations like the Mormon Church also played a key role in killing the original attempt to ratify the Equal Rights Amendment.

Now, over 30 years later, the LGBTQ rights movement has won incredible victories and successfully made moot nearly all of the anti-ERA arguments. Thanks to decades of tireless advocacy that led to the case of Obergefell v. Hodges, same-sex couples can now marry anywhere in the U.S. Public unisex restrooms are now becoming the norm in many places. All this progress does not bode well for the anti-ERA cause.

In 2017, on the heels of all this social transformation and after the Women’s March, a queer, black preacher from Nevada resurrected the ERA and brought it back into the modern age and political discourse as viable. As one of two openly gay senators in the legislature, Nevada state Senator Pat Spearman said, “The Equal Rights Amendment is about equality, period,” and shepherded an ERA ratification resolution through both houses.

Due to Spearman’s efforts, the Nevada legislature ratified the ERA 45 years to the day since Congress originally passed it. Sen. Spearman almost single-handedly reignited the robust national fight for constitutional rights on the basis of sex.

In 2018, Illinois followed suit, leaving only 13 potential states: Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah, and Virginia. None of these are known to be bastions of queer or women’s liberation, but several have their own state versions of the ERA already in their respective constitutions. Further, there are active campaigns in several states to ratify the ERA, most notably Virginia, North Carolina, Arizona, and Georgia.

Then on January 15 of this year, Virginia’s General Assembly passed a ratification resolution for the ERA in a 59–41 vote in the House of Delegates and 28–12 in the Senate, makingit the 38th state to pass the resolution.

As the ERA gets closer to the century-long quest of ratification, the question that looms large is: equal rights for whom? Though considered to be an amendment to add the female population to the Constitution, the word “women” is conspicuously absent from the ERA, which instead forbids discrimination on the basis of “sex.” It can be argued that this simple, straightforward language holds ample potential to protect all marginalized genders and sexual minorities.

Within the past two decades, six federal circuit courts of appeals and at least 15 federal district courts have concluded that discriminating against a person because they are transgender amounts to sex-based discrimination. The most relevant of these decisions is a case called Glenn v. Brumby, a federal lawsuit filed on behalf of a transgender woman fired from her job after she stated her intention to live as a woman. In this case, the Eleventh Circuit held that “a person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.” Therefore, “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination,” and subject to intermediate scrutiny under the Equal Protection Clause.

This burgeoning case law suggests trans+ people are protected under the current interpretation of “discrimination on the basis of sex” under the Equal Protection clause in the Constitution (the same category cis women are protected under). So, it stands to reason that trans+ people may also fall under the umbrella of the ERA’s protections, once it’s ratified and integrated into the Constitution. The ERA could play a role in expanding protections for trans+ people nationwide.

The ERA may also provide additional protection from discrimination on the basis of sexual orientation. There are currently only two federal circuit courts that have found discrimination on the basis of sexuality to be sex-based discrimination, and excitingly, “the tide may be turning” according to this 2018 case from the First Circuit. These federal circuit court decisions (Hively v. Ivy Tech Community College of Indiana and Zarda v. Altitude Express, Inc.) have already concluded that sexual orientation discrimination is also a subset of sex discrimination under the Equal Protection Clause. There would be no principled reason for courts to allow sex stereotyping discrimination under the Equal Rights Amendment, while simultaneously prohibiting sex stereotyping discrimination under the Equal Protection Clause and a variety of state and federal statutes.

Current generations of Americans are rethinking gender norms in new and exciting ways and looking beyond strict gender binaries. Thanks to the overarching language used by Alice Paul, the ERA can potentially serve as a wider tent of constitutional protection than she could have ever envisioned in 1923. The ERA is an amendment for our times.

We are only one state away from changing our foundational legal document. Let’s work together to ratify the ERA, and finally get the protection and recognition well over 50 percent of the population deserves — for women, girls, nonbinary folx, our transgender siblings, and all marginalized genders. When children read about the Constitution in school with the ERA firmly planted in it, they will learn that all Americans are created equal, not just men.

Kate Kelly is a human rights attorney at Equality Now, an international women’s rights NGO and a lead organizer of the national ERA Coalition. Follow her on Twitter @Kate_ Kelly_Esq. This previous version of this article was first published in ‘The Advocate’ and is used with permission.