Should Virginia’s new stewards of power ratify the ERA, Virginia would be the 38th state to do so, likely making the ERA the 28th Amendment.
The siren song of historic opportunism notwithstanding, Virginia’s lawmakers should reject ERA. While perfecting the promise of equality under the law and advancing the interests of women are noble pursuits, the ERA looks different in light of the transgender movement.
There was a time when the meaning and intended purpose of the ERA was clear. At the 1923 National Women’s Party convention in Seneca Falls, N.Y., Alva Belmont lamented sex discrimination in “education, in industry, in the professions, in political office, in marriage, in personal freedom, in control of property, in guardianship of children, in making contracts, in the church and in the double moral standard.” When a previous version of the ERA was introduced by Alice Paul at the same convention, it read, “Men and Women shall have equal rights throughout the United States and every place subject to its jurisdiction.” Put differently, the obvious point of the ERA was to rectify an illicit disparity between men and women by advancing the civil rights of women and to enshrine the principle of legal equality between the two sexes in our highest form of law.
The ERA was not, however, intended to eliminate the binary construct of gender entirely, a purpose for which the current gender identity movement will no doubt use it. Such effort will find its legal heritage in federal case and statutory law. In 1989, in Price Waterhouse v. Hopkins, the Supreme Court held that gender stereotyping is an actionable form of sex discrimination under Title VII of the Civil Rights Act of 1964, which prohibits an employer from taking an adverse action against an employee “because of such individual’s … sex.” In that case, a woman was denied a promotion because her demeanor was viewed as insufficiently feminine.
Using the Price Waterhouse interpretation of Title VII, 30 years later, gender identity advocates have already taken their case to the high court, arguing that discrimination against transgender employees is just another form of gender stereotyping and is therefore prohibited by Title VII. It’s admittedly a strong legal argument; if a biological male wears a dress and heels to work in defiance of traditional gender norms and is subsequently fired for his choice of attire, the inescapable conclusion is the employer has engaged in gender stereotyping in violation of Title VII.
Conservative textualists (including Justice Neil M. Gorsuch) are likely finding this much difficult to reconcile and understandably so.
Yet the potential fallout of the Title VII case now before the court pales in comparison to the repercussions of applying Price Waterhouse’s gender stereotyping theory to constitutional questions vis-a-vis the ERA’s “on account of sex” language. Would the ERA require the abolition of every distinction concerning gender in our society, as Title VII seems to require of our employers? Would legislative safeguards for women decades in the making be undone in one fell swoop? Would changing social norms flowing from the ERA put women at a disadvantage?
Indeed, as the foregoing questions suggest, the underlying controversy in both the Title VII case now before the Supreme Court and the ERA is one of policy, and the broad question at hand is simple but hotly contested: Is there value in drawing legal, civic and social lines between men and women?
Take the argument made by Abigail Shrier in the Wall Street Journal: “Biological boys who identify as girls would gain an instant entitlement to compete on girls’ teams in all 50 states. No more democratic discussion of accommodation, competing interest, sacrifice and fairness. No more debate about whether we should really allow girls’ scholarships and trophies to go to male athletes who were unable to excel on the boys’ teams. No more discussion about whether it’s right to allow, as we have, biological men to pick off championships in women’s and girls’ powerlifting, cycling, wrestling and running. These emergent public discussions would be locked away in a vault of civil rights.”
Perhaps a historical perspective is useful. Consider the opinion of Frances Perkins, the secretary of Labor under President Franklin Delano Roosevelt and first woman appointed to a Cabinet position. Perkins declined to endorse the ERA, saying, “There has never been any doubt in my mind about the capacity of women to work and their skill and intelligence has always made them very capable, but they have been successful in industry only when industrial conditions have been adapted to their needs.” She continued, “I have always thought it was unintelligent to proceed blindly, and an amendment to the Constitution in a matter so complex as this has results which are unforeseeable. The civil disabilities of women are being removed gradually by legislation — indeed quite rapidly, and I see no reason why we should not proceed in that method, knowing what we are doing, rather than knocking out blindly not only the industrial legislation which I feel is so essential, but also some of the laws and judicial interpretations of common law which protect the family as an institution and stabilizes in fact a woman’s status in the family relationship.”
Thanks to the gender identity movement’s pestilential fondness for lawfare, the ERA, in its present form, stands to nullify womankind’s unique contributions to our society and erase the hard-fought protections women have spent generations securing. For that reason, Virginia lawmakers should steer clear.