GASBR Calls for the Immediate Publication of the Equal Rights Amendment

GASBR CALLS FOR THE IMMEDIATE PUBLICATION OF
THE EQUAL RIGHTS AMENDMENT

In 1923, the Lucretia Mott Amendment, later to be known as the Equal Rights Amendment was first introduced in Congress. It was first drafted by National Women’s Party cofounder Alice Paul. It now provides that:

Equality of rights under the law shall not be denied or abridged
by the United States or by any state on account of sex.  

The Equal Rights Amendment has now met the Constitutional requirements for ratification to become 'valid to all Intents and Purposes, as Part of this Constitution' of the United States. It did so by securing passage by each chamber in Congress with the support of a two thirds majority, and ratification by 38 of the 50 states constituting 'three fourths of the several States' as required by Article V. of the U.S. Constitution.  

The Green Alliance for Sex-Based Rights supports the insertion of  sex as a protected category into the U.S. Constitution.  While we support the publication of the ERA, we also view as essential the struggle to ensure that “sex” in the ERA and other civil rIghts laws is defined as the biological distinctions between males and females, and that gender identity is not permitted to override sex. We oppose the legal fiction creeping into American jurisprudence that men can be women based on their self-identification, that an immutable biological trait can be dismissed or ignored as if it has no significance. 

We recognize that our support for the ERA is not sufficient. We must wage the struggle against gender ideology while continuing to advance a pro-active agenda for women’s liberation, building on the herstory of achievements by our fore-mothers in the First and Second Waves of Feminism, to improve the world we would leave to our daughters and the generations of women to come. That agenda includes securing the tools needed to  fight against policies and practices by all levels of government and corporations that continue to discriminate against women based on their sex. We ultimately conclude that the ERA is one of those tools. 

The Position of the Green Alliance on Sex-Based Rights
On the Ratification of the Equal Rights Amendment 

The Green Alliance for Sex-Based Rights expresses its support for the recognition of the Equal Rights Amendment as the law of the land. 

The Alliance demands that the United States Archivist fulfill his mandate under Title 1 of United States Code, Section 106b to publish the Equal Rights Amendment, which has been ratified by the requisite numbers of states, as the 28th Amendment to the United States Constitution.

The Alliance further demands that the President instruct the Archivist to comply with his legal obligations to publish the ERA and ensure that the Attorney General cease its opposition to the ERA in Court and defend against any actions that would challenge or undermine the ERA.

The Green Alliance for Sex-Based Rights urges its members, Greens and the general public to join us in our efforts to end this Constitutional Crisis and to finally enshrine the sex-based rights of women in the founding Constitution of this nation. 

A Constitutional Crisis 

By its own terms, the Equal Rights Amendment took effect on January 27th, 2022, two years after the ratification by the 38th state. Even so, a controversy arose over a provision of Congressional legislation sending the ERA to the states which placed a time limit on ratification. Congress extended the  deadline once and then let it expire in 1982. ERA supporters argue that the deadline for ratification set out by Congress exceeds its authority under the Constitution by imposing conditions for ratification beyond those required by Article V., of that Constitution. Supporters further point out that the deadline is in the preamble and not in the actual language of the Amendment voted on by the States.

Moreover, the courts previously and with respect to other Amendments now recognized as a part of our national Constitution, have rejected the power of a state to rescind its ratification of an Amendment, after it is approved.  

When a sufficient number of states have communicated to the United States Archivist that they have ratified an amendment to the U.S. Constitution, Title 1 US Code Section 106b requires that the Archivist publish their finding to that effect in the Federal Register. In early 2020, Virginia became the 38th state Assembly to ratify the ERA. In response, a U.S. Senator from Alabama sued the Archivist in federal court to enjoin the publication of the ERA in the Federal Register. The Trump Administration’s Attorney General both failed to defend the Archivist in the performance of their duty under the law, and also issued a memo directing the Archivist to not comply with the law. After the 2021 Inauguration, the incoming Biden Administration also failed to 'take care that the laws be faithfully executed' by failing either  to rescind the AG’s Opinion or otherwise directing the United States Archivist to perform his ministerial duty.  

The failure to publish notice of the ratification of the Equal Rights Amendment has created a Constitutional crisis in the nation, leaving in doubt whether the courts will enforce the sex-based protections of the ERA. The effect has been to allow the will of a small handful of men to overcome the democratic engagement of thousands of women who fought for nearly a century to secure Constitutional protection for women based on sex in this nation’s founding document.  

The 2016 Platform of the Green Party of the United States, in Chapter II., related to 'Social Justice', Section A., related to 'Civil Rights and Equal Rights', subsection 1, related to 'Women's Rights', paragraph a., in its discussion of the Equal Rights Amendment declares the party's "support (for) using the precedent of a three-state strategy for ratification".  

The Women’s Liberation Front makes a serious case
for opposing the ERA that merits consideration. 

On March 15th, 2021, the Women’s Liberation Front (WoLF) published a series of six articles collectively entitled “The Feminist Argument Against The Equal Rights Amendment.” This series raises some serious concerns about the ERA, and what its passage could mean. In brief, it points out that:

  • Discrimination, per se, is not always harmful, and is sometimes just and better for society – for example, providing accommodations for people with disabilities. Women, in particular, have sometimes been helped by certain forms of discrimination that recognize the differences between the sexes – such as women’s shelters and other sex-segregated spaces.
  • The ERA could have the effect of increasing the government’s power to remove sex-based protections.
  • Historically, some feminists and other progressive forces opposed the ERA for that very reason.
  • The ERA would cause our courts to analyze any laws that distinguished between men and women more critically, under the “strict scrutiny” standard, which would require government bodies to show a higher level of justification for maintaining those distinctions. In other words, it could lead to more of these laws being struck down as unconstitutional.
  • Some advocates of the trans-activist agenda – groups promoting the dogma that “trans-women are women,” etc., such as the ACLU – have already been using the language of “anti-discrimination” to attack laws that discriminate on the basis of sex in a positive way, e.g., those that protect women’s sports or that allow sex-segregated facilities and programs. 

WoLF goes on to argue that, if the ERA were to become adopted into law, it would potentially give the trans-activists a potent weapon with which to attack laws that distinguish between men and women on the basis of their actual (biological) sex. It also points out how the well-funded trans-activist or “gender identity” lobby, as well as “men’s rights” activists, have thrown their support behind the ERA, anticipating that they will be able to use it in just such a fashion.

In our view, WoLF raises some serious concerns, and we recommend that all supporters of women’s rights read and consider its analysis. 

Equal Means Equal campaigns for ratification
and publication in order to ensure full legal equality for women.  

In contrast to WoLF, organizations such as Equal Means Equal and Feminists in Struggle, among others, have continued a century-long campaign by women to secure ratification of the Equal Rights Amendment to recognize sex as a protected class in the Constitution and the benefits that would bring to women in the struggle for legal equality  

Proponents argue that the placement of the ERA in the U.S. Constitution is an important step forward for women. It would undo an injustice dating back to the period right after the Civil War when “male” was inserted into the Constitution for the first time, and women were denied their rights as citizens. Moreover, they claim that giving sex the same status as race as a protected class through the ERA and requiring strict scrutiny will make it far easier to challenge a myriad of discriminatory sexist practices pervasive in our patriarchal society, from unequal pay, to discrimination against pregnant women workers, to restrictions on abortion and birth control, and the denial of equal protection of the law for women facing men’s physical and sexual violence.

In recent history, a number of legal defeats for the rights of women, including: Walmart v Dukes, 564 US 338 (2011), Castle Rock v Gonzales, 545 US 748 (2005), and others, might easily have been turned into victories, proponents argue, if litigants had the benefit of the Equal Rights Amendment. 

These organizations disagree with WoLF’s assessment that placing sex-based rights into the U.S. Constitution through the ERA would preclude women-only spaces and programs. They point to extensive case law which has upheld as constitutionally permissible affirmative action programs that rely on distinctions made with respect to suspect classifications, such as race, despite being subject to strict scrutiny, since these distinctions are necessary to address past discrimination of an historically disadvantaged group. 

They point out that many gender ideologues are actually openly hostile to the ERA as insufficiently “inclusive” because they favor the elimination of the word “sex” entirely in favor of gender and “gender identity.” They point out that anti-feminist forces like Concerned Women of America have always opposed the ERA. 
They further argue that the sex-based rights and status of women has already been undermined by the legal fictions of gender-identity ideology, without the benefit of the Equal Rights Amendment. Yet no one is calling for the elimination of vital sex discrimination laws like Title IX and Title VII because some courts and government bodies have allowed gender identity to override sex.  

Moreover, even when a constitutional amendment is misinterpreted, it can still play a protective role as originally intended. As one example, the 150-year history of 14th Amendment jurisprudence has produced an overwhelming number of cases  based upon the legal fiction that corporate “personhood” should be protected under its due process and equal protection provisions. Yet the 14th Amendment has also been relied on in countless court opinions to protect the fundamental rights of natural persons, including oppressed racial minorities, and no one who is committed to such rights would ever suggest repealing it. 

Ultimately, courts’ interpretation of the ERA will depend in large measure, on determining the intentions of its authors when they used the word “sex.” The courts will have to take account of how the word was construed by Congress in 1923, in 1972, and throughout the 1970s and early 1980s, when the first 35 states ratified the ERA. It would require gymnastic-like judicial activism to retroactively apply the demands of 21st Century trans-activists to the intentions of state legislatures when they voted to ratify the Equal Rights Amendment 40 and 50 years ago.


Conclusion

For these reasons, despite the valid concerns raised by WoLF, we are ultimately not persuaded that its analysis provides sufficient reason to oppose the ERA. It’s a tough call for many of us, but too much of its analysis is based upon an overly pessimistic projection of the likely outcomes in the courts, and it also does not adequately take into account the ERA’s potential to secure some important victories for women.

No one can know with certainty how all of these legal battles would play out if the ERA were to become law. Thus, our position on the ERA requires making a judgment call on the balance of possible outcomes. Our conclusion, after considering the range of possibilities, is that feminists and other supporters of women’s rights and interests should continue to support the ERA.

What we can state with certainty, with the benefit of WoLF’s analysis, is that it is imperative that the struggle for the ERA must be coupled with an equally vigorous struggle, in the courts and in society at large, to insist that the word “sex” in the text of the ERA means just that – biological sex, not gender, and not self-perception. 

Women need equality of rights under the law based on sex as provided by the ERA. Women also need female-only spaces and programs as conscious remedies to men’s violence, historic discrimination and oppression and to protect the privacy and dignity of women. One is not inconsistent with the other and both are essential for women’s liberation. We must fight for both.

 

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