ERA: A Sex or Gender Amendment?

Voiced by Amazon Polly

I’ve started calling the proposed federal Equal Rights Amendment (ERA) the “Zombie” Amendment because, no matter how many deadlines one sets for its expiration, we always seem to be in the middle of “Night of the Living Dead.”

The latest attempt to resurrect it was made on January 9 in the 2019 session of the Virginia Legislature, where proponents of the ERA predict the Commonwealth will be the 38th state to “ratify” the Amendment.

As Paul Harvey would have put it, “the rest of the story” is somewhat more complex. When Congress approved the ERA in 1972, the joint resolution proposing the amendment set a seven-year limit on its ratification. The ERA was supposed to be approved by March 22, 1979, or die.

By 1975, ratification had stalled, with some states that had initially signed on to the proposal rescinding their approvals. In 1978, with less than six months to go before the ERA was set to expire, Congress attempted to extend the ratification deadline through mid-1982. The extension was arguably unconstitutional because it tampered with the terms on which the Amendment was first approved and it was adopted without a two-thirds vote of both houses. What contract do you know of which one side can extend for three-plus years without the other side’s clear agreement? The legal question became moot, however, when not a single state subsequently signed on to the ERA.

 

In the past five years, a new attempt has been brewing to call the Lazarus Amendment forth. Nevada and Illinois purported to ratify the ERA (although the latter had failed to do so during the initial seven-year window). Provided one counts all the previous ratifications from a half-century ago as valid—including those that subsequently rescinded—one would cobble together “38” ratifying states.

But this essay is not about the constitutional technicalities raised by the ERA. My question is more fundamental. What is the ERA about? Is it about “sex” or “gender”?

At first glance, the Amendment seems to speak for itself. Section One reads, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” (emphasis added).

But current advocates of ratification, like Virginia State Senator Richard Saslaw, call the ERA a “gender equality” amendment.

So which is it?

The question is not just one of semantics. It is a question of fixing the intent of the amendment when it was first approved. And this is disputable.

When the 92nd Congress proposed the ERA in 1972, most people thought of “sex” in terms of men and women. Even though the ERA was adopted after Woodstock, the Pill, and Humanae Vitae, folks back in the benighted 1970s still clung to the dreaded “gender binary.”

That said, does the ERA constitutionally reaffirm sexual differentiation as a legitimate criterion for legal distinction? Is it arguable that the ERA could be a backdoor way of revalidating “male and female He created them” as a legitimate category in American law? If “sex” becomes constitutionally protected, could the ERA be used to challenge Obergefell on its claim that marriage as always practiced pre-2015 was discriminatory because it took cognizance of sex?

I am not sanguine.

The same Congress that proposed the ERA also enacted Title IX forbidding “sex” discrimination. The subsequent history of the latter law and its expansive interpretation tended to broaden federal jurisdiction. Under the Obama Administration—and with no action by Congress—Title IX’s prohibitions on “sex” discrimination began being read as a ban on “gender” discrimination, a perspective that generated legal challenges and is now under administrative review. So there is already precedent—albeit disputed—for trying to morph “sex” into “gender.”

Debate ensued over the meaning of Title IX because the statute could easily be revised by Congress and reinterpreted via regulation by the executive branch.

Disputes over the meaning of a constitutional amendment are qualitatively different. The Constitution is meant to set general principles that help guide federal law and policy. Arguments over what constitutional provisions mean are generally outside the political process and settled by federal courts whose decisions are peculiarly resistant to revision. Do you think the Supreme Court erred? Try, then, to get two-thirds of each house of Congress and 38 states to change it. And, in the meantime, the Supreme Court precedent begins to metastasize, conditioning the development of further federal law and policy.

So, what will we get with the ERA? An amendment that enshrines two sexes in the Constitution? Or one that regards gender as an essentially individual and plastic construct, which society must honor to prevent “discrimination”?

Consider the path the ERA ratification has followed. Today’s “bathroom wars” are nothing new. Whether bathrooms, locker rooms, and common showers can be sexually differentiated or not did not first come to prominence in the post-Obergefell world of the last five years.

The debate over private venues where sexual differentiation was arguably relevant was played out in the 1970s when the ERA first went to the states for ratification. When ERA began running out of gas in 1973 (a telling two months after Roe was decided), opponents began claiming that the ERA would abolish men’s and women’s bathrooms, showers, and locker rooms. At the time, ERA proponents called the argument false and specious: the Amendment, they said, had nothing to do with sexually differentiated showers and restrooms.

But that was then and this is now.

States that enact legislation to sanction sexually differentiated facilities such as bathrooms and shower rooms (North Carolina comes to mind) are often branded “discriminatory” and made the objects of boycotts for their supposedly prejudicial attitudes. Elite opinion-makers treat this unproven insult as if it was beyond dispute.

So, how are we to interpret the ERA? Does it have no effect, as its 1970’s advocates claimed, on sexually differentiated facilities (especially where a privacy claim is arguably present)? Or does it mandate, as its post-2014 proponents assert, the abolition of those distinctions?

Shouldn’t we know before we write something into the Constitution?

Furthermore, will the ERA be judged by what was intended by supporters when it was adopted? Or will the ERA be applied like some on the Supreme Court read the Eighth Amendment, i.e., not by the standards of its authors but against “evolving standards of decency,” such as whatever five unelected judges at a given moment in time think it is?

These questions apply to all Americans. But they have a particular cogency for Catholics, because what is at stake is arguably our Genesis heritage. Will Genesis 1:27—“male and female He created them”—continue to be a principle relevant to the formation of Western culture and its legal norms, or will it be relegated to some quaint, private, and “discriminatory” religious doctrine, deserving begrudged acknowledgement on the part of the deplorables that cling to it while increasingly being ruled out of order in the naked public square?

Editor’s note: Pictured above, a woman holds up a sign as members of Congress and representatives of women’s groups hold a rally to mark the 40th anniversary of congressional passage of the Equal Rights Amendment (ERA) outside the U.S. Capitol March 22, 2012, in Washington, DC. (Photo by Chip Somodevilla/Getty Images)

John M. Grondelski

By

John M. Grondelski (Ph.D., Fordham) is former associate dean of the School of Theology, Seton Hall University, South Orange, NJ. All views expressed herein are exclusively his own.

MENU