Would the Equal Rights Amendment Protect Trans People?

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By Georgia Geen

Capital News Service

RICHMOND — There are many unknowns surrounding the Equal Rights Amendment — conceived to prevent sex discrimination — including whether it will be ratified by enough states after the ERA died in the Virginia General Assembly. Adding to the uncertainty is the question of whether the amendment would ensure protections for transgender people.

The ERA doesn’t define “sex,” meaning it’s unclear if it would protect transgender people — those whose gender identity doesn’t match their biological sex — from sex discrimination.

The amendment, first introduced in 1923 by suffragette Alice Paul, was ratified by 35 states in the 1970s, and by two more in recent years, leaving it one state shy of the 38 needed to amend the U.S. Constitution. Congress imposed a 1982 deadline on ratification, and several states have since rescinded their ratifications. As a result, experts disagree on whether the ERA would be enacted even if ratified by 38 states, considering the Constitution isn’t clear on either issue.

Hannah Simpson — a New York transgender activist who visited Virginia in January to advocate for the ERA — said she thinks some of the opposition to the amendment is caused by the belief that it could protect transgender people.

She compared the evolution of the term “sex” to that of “religion,” which has broadened in meaning since the Constitution was written. The fact that religion meant Catholicism or Protestantism to the Founding Fathers doesn’t mean that the term isn’t inclusive of Buddhism today, Simpson said.

“You can express your religion differently than other people within the same religion might. You can even change your religion over the course of your life, multiple times,” Simpson said. “If we have that enshrined in our understanding of what it means to not discriminate, I really don’t see any contradiction to making our perception of sex any different.”

A point often cited by opponents, the ERA doesn’t define “sex,” a term that has evolved in meaning since the amendment was first written almost a century ago.

“The Equal Rights Amendment got penned in language in an era where we had not had a particularly robust or public conversation about, ‘What is sex?’” said Deirdre Condit, a feminist political theorist at Virginia Commonwealth University. “Fast-forward 100 years, and sex is, we now know, much more complex than a simple binary.”

Federal courts have determined that protections based on “sex” apply to transgender people in a number of situations, such as Title IX protections in Whitaker v. Kenosha Unified School District and Dodds v. U.S. Dept. of Education. Congress would have the option to write statutory language that explicitly includes transgender people under the definition of “sex” in the ERA, Condit says, but that could also be easily undone in subsequent legislative sessions.

The ultimate decision-maker on whether the term “sex” applies to transgender people, should the amendment be ratified by a 38th state, would be the U.S. Supreme Court. Though it is possible for the Supreme Court to overrule itself, it isn’t likely. The court “loathes to do that; it doesn’t do it very often,” Condit said.

Condit said there’s considerable evidence that can be introduced to the court to “blow apart” the notion that sex is just biologically male and female. Social sciences define “gender” as a person’s gender identity, while sex usually refers to physical characteristics.

“The court is just going to have to wrestle with it,” Condit said.

Some ERA supporters want more discussion about how the legislation would apply to transgender people.  

Condit said the absence of this discussion is political.

“The [ERA] proponents are being very, very careful not to key in fears, not to attract things that could stop passage,” Condit said.

For a movement that’s attracted some support from Republicans, one of those “fears” would be the amendment’s potential application to transgender people, Condit says. She compared it to the suffragettes’ decision not to include black women in the fight for women’s right to vote. If they had advocated for black women’s right to vote, Condit said, white women in the South would have never “come on board.”

Patricia Wallace, a volunteer for VAratifyERA, an organization that advocates for the state’s ratification of the ERA, said that’s not quite the case, pointing to research they facilitated on the topic.

“Anybody that is in favor of that could be part of the part of the campaign,” Wallace said. “Once you start to get into particular issues or particular remedies for particular issues, people probably start to diverge.”

Wallace said the idea that the ERA would apply to transgender people “may be wishful thinking,” but that most members of the campaign hope it does.

Richmond activist Chelsea Higgs Wise believes there is a lack of inclusion of women of color and LGBTQ people in the movement to ratify the ERA.

Instead, she said, organizers have focused on appealing to conservative women. While that garnered increased momentum across Virginia — which Higgs Wise doesn’t think would have happened otherwise — the ERA still died in committee, by one vote. Other states considering bills to ratify the ERA include Arizona, Florida, North Carolina and Utah.

“If we had a real organizing strategy of building a movement with other women, versus building a movement by playing nice, then this would have been an intersectional movement,” Higgs Wise said. “So the only thing we did was pander to [conservatives] and leave out our community.”

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