The ERA and Gender Ideology
Could the Passage of the Amendment Impact Today's Debate?
A thought experiment that may be utterly incorrect but I think interesting nonetheless…and I get to refer to a truly memorable commercial. I’ve opened up the comments for everyone (not just paying subscribers as usual), so if you have another theory or are actually an attorney who actually knows what you are talking about please do chime in!
Ah, the 1970s.
Bellbottoms, Ford Pinto explosions, Whipping Inflation Now, malaise, disco, Mr. Microphone and being back to pick up “good lookin’” later, and women’s empowerment as expressed by the Equal Rights Amendment and perfume commercials -
– were all the rage.
But like most of Seventies “culture,” the movement to ratify the ERA petered out.
The highly contested amendment and the fight against it (which many observers believe led to the resurgence of conservatism in America) seemed to wrap up with not enough states ratifying the ERA by the Congressionally-imposed 1979 deadline.
The text of the amendment is very simple –
"Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
"Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
"Section 3. This amendment shall take effect two years after the date of ratification."
- but it still couldn’t quite make it over the finish line.
Now, though, the finish line may be moving and maybe that’s not necessarily a bad thing for a reason that was on nobody’s radar in 1972 – gender ideology.
The amendment has been reintroduced in Congress often, with the House passing a new version though the Senate has not acted on its version despite what appears to be bi-partisan support. Both versions repeat the original text verbatim, but the latest House version adds the phrase “Women shall have equal rights in the United States and every place subject to its jurisdiction…” to section 1. It also gives the states as well as Congress the power to enforce the amendment.
The House has also passed a bill removing the 1979 deadline originally imposed; the Senate has yet to take action on that issue. Prior to the original deadline, 35 of the 38 states needed had ratified the amendment, though six later rescinded that ratification. But after the deadline passed, three more states ratified the amendment.
What that means is if the post-deadline ratifications are valid (a thorny legal question) and if the revocations are ruled invalid (also a legal quagmire), the amendment would already have the 38 states needed. Therefore, proponents argue that if the 1979 deadline is removed by Congress – which it might be able to as it put it there in the first place - and barring successful legal challenge, the ERA (at least the original version) could be deemed ratified without having to go through the whole process again and, two years afterwards, become the 28th amendment to the constitution.
So – putting aside for a moment certain other objections and especially considering the changes that have occurred in America since 1972 – what would be the impact of the ERA today?
Here it gets interesting as the amendment codifies equality of the sexes, with the new House version even specifically designating “women” as the protected class. What it in no way, shape, or form codifies is the equality of gender.
It doesn’t mention gender at all – it only says “on account of sex.” So where would that put the trans activists?
Passage could be deemed to at least imply – if not directly put into law – the once very very non-controversial idea of the existence of actual immutable biological sex, a fact that trans activists call into question at every opportunity - https://www.forbes.com/sites/kimelsesser/2020/06/15/the-myth-of-biological-sex/?sh=71ab5e1676b9 .
Passage of the ERA would not necessarily impact LGBTQIA+-related anti-discrimination laws already on the books, but it could very well delineate between biological sex and expressed gender, a demarcation that could upend much of the trans activist agenda.
For example, would the constitutional protection be extended to someone who calls themselves a woman but is in fact not, or vice-versa, when accessing government or insurance benefits, etc.? Would - like with drinking and voting - it allow states to set age limits? Would a person have to surgically “go all the way” before they would “count” as a woman? How would the addition for the first time of the word “woman” - but not “intersex,” for example - to the constitution play out legally? Would the notion of gender fluidity – boy one day, girl the other depending upon how you wish to identify at any given moment – be legally crippled (or rendered moot and/or functionally meaningless) by the ERA as that state, from a government standpoint, would not exist?
In other words, would the ERA codify the binary?
The answers to these questions are currently unknown (and I’m not a lawyer and I don’t even play one on TV), but a move to state with finality that sex legally exists might be a neat idea from the Seventies we may wish to bring back.
But – please – don’t even think about bringing inflation back as well.
Oh, wait…
PS - Just in case you really needed another Seventies fix, here is the infamous Mr. Microphone commercial:
PPS - In case you were wondering, Mr. Microphone cost the equivalent of about $90 bucks in today’s dollars, more than $100 if you got “Mr. Microphone II.” I guess that’s why I didn’t get one for Christmas…or, more likely, my mother realized that handing any child anything that would automatically make them louder and more annoying was not a good idea. Case in point -