Reviving the ERA: Using women's rights to undermine women's rights

Reviving the ERA: Using women's rights to undermine women's rights
© Greg Nash

The progressive attempts to undermine women’s rights just keep coming, and this time include subverting the Constitution. Fortunately, a few champions have stood up to defend women’s rights and the rule of law. 

Recently, Alabama, Louisiana and South Dakota filed a lawsuit in federal court challenging an attempt in the U.S. House to revive and push through the Equal Rights Amendment (ERA), which was initially passed by Congress and sent to the states for ratification in the 1970s. ERA proponents claim it protects women’s rights by prohibiting, within the Constitution itself, discrimination based on sex. 

But there is a problem: The word “women” never appears in the ERA. Instead, the amendment focuses on “sex” — a word increasingly in danger of becoming meaningless as ideologues push to disassociate the term from biology and replace it with “gender identity.”

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This effort to revive the ERA is simply the latest attempt to change the legal definition of “sex” and undermine women’s rights. Under the ERA, commonsense accommodations for pregnant women in the workforce and the military, government programs such as Women, Infants and Children (WIC), and criminal protections via the Violence Against Women Act could all end.

If that weren’t enough, passing the ERA as it stands is illegal. When passed by Congress in 1972, the amendment came with a seven-year deadline for approval — meaning that if the amendment did not garner the support of 38 states by 1979, it would lapse. That deadline was later purportedly extended to 1982, but proponents could not get the needed support even then. To pass it now, Congress must somehow lawfully account for the lapse of the past several decades.

Laws such as the ERA have brought dire consequences for women. In local areas and states that have implemented ordinances similar to the ERA, women and girls have had their opportunities, their privacy, and even their physical safety severely compromised. In Massachusetts, the state Supreme Court ruled that if boys who identified as girls wanted to participate in sports that are not available to boys, such as field hockey, the state’s ERA required that the boys be permitted to do so. In other words, the state law stripped girls of the option to play only with members of their same biological sex. It also made it possible for boys to qualify for girls’ high-school athletic competitions — and win at the expense of girls.

The Connecticut Interscholastic Athletic Conference has allowed two boys who identify as female to run against girls in high school track and field competitions. Because of the boys’ presence, biological males have been awarded 51 opportunities to compete in higher-level state competition in the girls’ division, while the girls were just awarded 31 such opportunities. Alanna Smith, a gifted athlete who hopes to compete at the collegiate level, was knocked from second to third place by a biological male.

It is not only women’s sports on the line. Under the ERA, women stand to lose their basic physical privacy. The amendment could force organizations to open women’s shelters, locker rooms, restrooms and shower facilities to biological men who identify as women. This, too, is already happening at the state and local levels.

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Anchorage, Alaska, for example, used a public accommodations law to try to compel a women’s shelter to let biological men sleep just three feet away from vulnerable women, many of whom have survived rape, sex trafficking and domestic violence. The ERA could have a similar effect,  and prohibit women’s shelters from differentiating between biological men and biological women, jeopardizing women’s safety and possibly triggering emotional and mental trauma for women.  

Many women rejected the ERA in the 1970s and ’80s because they knew it was a bad idea. It still is. Women do not need the ERA; federal law already guarantees equal employment, pay, education, credit eligibility, housing, public accommodations, etc. The ERA has potential to make things worse by disassociating the existing protections for women from biological sex and replacing that clear-cut biological distinction with amorphous, ill-defined “gender identity,” a term with a definition nobody can agree on.   

Fortunately, Alabama, Louisiana, and South Dakota have taken the step of filing a lawsuit to prevent the ERA from being added the Constitution without going through the proper legislative processes. In a Dec. 18 news release, these states explained, “If activists want a new ERA, they should persuade their fellow Americans that it makes sense, then pass it through Congress and a new state ratification process. As Justice Ruth Bader GinsburgRuth Bader GinsburgSupreme Court raises bar for racial discrimination claims in contracts Supreme Court rules states can eliminate insanity defense Supreme Court postpones oral arguments amid coronavirus pandemic MORE — a noted proponent of the ERA — recently stated, the ERA cannot be law unless it is ‘put back in the political hopper and we start over again collecting the necessary states to ratify it.’”

These courageous states have stood up against an unconstitutional effort to deconstruct women’s rights, and they deserve the support of all Americans who believe in the Constitution, the rule of law, and equal protections for women.

Kristen Waggoner is general counsel and senior vice president of U.S. legal division and communications at Alliance Defending Freedom. Follow her on Twitter @KWaggonerADF.