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The Equal Rights Amendment and the Equality Act: Two Equality Measures Explained

Policy briefs implemented by Columbia Law School ERA Project

When the United States Constitution was enacted in 1789, the definition phrase “our people” did not include women, LGBTQ + people, people of color, or immigrants. By 2021, these groups, among other things, still lack basic equality before the law. Two laws are pending in Congress that strengthen legal protection against discrimination based on gender, sexual orientation, and gender identity: the Equality Right Amendment (ERA) and the Equality Act.

The United States is an outlier in modern democracies in that it does not include these protections in its constitution or law. Nevertheless, equal rights amendments and equality before the law remain controversial. The same horror tactics used to stall ERA in the 1970s and 1980s, especially women, as ERA gained new momentum and sexual minority groups gained awareness and visibility in the gender equality movement. Are being reused to fight each other. Regarding the equality law.

This policy brief explains what the Equality Act and ERA do, how they can work together, and why both are needed.

What is the Equality Act?

LGBTQ + people face widespread discrimination and lack basic equal protection under 12 federal and 29 state laws. The Equality Act updates the existing Federal Civil Rights Act by applying a comprehensive definition of gender, including sexual orientation, gender identity, and expression. In 2020 Bostock vs. Clayton County, The Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits (especially) “gender” -based employment discrimination and extends to discrimination against employees based on sexual orientation and gender identity and expression. Did.Equality law will codify the Supreme Court’s decision Bostock Explicitly take LGBTQ + people under the protection of other sections of federal law, across workplaces to public schools, housing, credit opportunities, juries, federal-funded programs, and public facilities (generally open public). (Defined as a target and private facility) is generally reached).

As a starting point, ERA will lead the transformation of gender equality in the following ways:

  • Adding an explicit guarantee of gender equality to the Constitution provides the strongest legal protection against future legislative attempts to revoke the right to gender equality.
  • It provides courts, governments and parliaments with the opportunity to modernize the concept of equality and equal citizenship protected by the Constitution, adopting not only formal equality but also a broader and more modern substantive concept. To do.
  • Empower defenders and courts to challenge gender-based discriminatory legislation at the federal, state, and local levels.
  • Provide evidence that the court recognizes pregnancy discrimination as a form of prohibited sexism.
  • Require courts to apply the strictest levels of judicial review to gender and gender stereotypes and prejudiced discriminatory law.
  • It supports a comprehensive definition of sex, including sexual orientation, gender identity and expression.
  • Align the United States with more than 100 other countries with constitutional protection against gender discrimination.

How are equality laws and ERA related and why do we need both?

ERA and the Equality Act strengthen each other’s pillars of equality. Equality law modernizes our civil rights law and strengthens our democracy. Next, as a constitutional protection, the ERA isolates gender equality protection from the whims of Congress and the changing political situation, laying the foundation for existing equality provisions in our law and proposed legislation such as the Equality Act. increase. The history of the ERA movement shows why a broad and comprehensive view of gender equality is so important. The same type of reactionary politics that stalled ERA is being reused by opponents of equality law. The ERA was passed by Parliament in 1972 with overwhelming bipartisan support and ratified by 30 states within a year. But shortly thereafter, the anti-ERA movement gained momentum. By 1979, the seven-year deadline first imposed by Parliament had passed, and the ERA was three less than the 38 states required to ratify the constitutional amendment. Until Nevada ratified ERA in 2017, Illinois in 2018, and Virginia in 2020, ERA did not ratify 38 states. The legitimacy of the time limit imposed by Congress and the validity of several state attempts to revoke previous ratification of ERA have become issues currently being tried in federal court and being discussed in Congress. I am.

The anti-ERA movement of the 1970s was successful in inciting fear, appealing to gender and gender stereotypes, and confronting women. Opponents of ERA have assembled gender equality as a threat to the traditional values ​​and family structure of women staying home to care for their children and husbands. Opponents threatened ERA to legalize gay marriage, force women to work outside their homes, demand women to join the army, and abolish gender bathrooms. is doing. Anti-ERA messaging has shaped the discourse of gender equality as a zero-sum game, instilling fear that ERA may benefit women working in the wage labor market at the expense of those who work at home.

The ERA and the Equality Act are mutually strengthening measures that strengthen and protect the broad and comprehensive concept of sexism.

In the 40 years since Congress first passed ERA, social understanding of the meaning of equality has evolved considerably. Fear, highly effectively armed by anti-ERA opponents, such as LGBTQ + rights, women’s military service, and gender-neutral toilets, is widely accepted and destroyed as a necessary aspect of a more equal society. Realized without. Family as predicted by ERA opponents. Conservatives are using LGBTQ + rights as a horrifying tactic to defeat the ERA movement, but some “feminists” are how to strengthen women’s movements against transgender rights and equality law. I consider it to be. After all, what is lost is the basic principle of equality, which is seriously lacking for transgender people, who had the most deadly year on record in 2020.

In 2021 alone, lawmakers from 30 states submitted more than 80 bills covering the right of transgender youth to participate in sports and receive medical care. The rhetoric surrounding transgender youth who have an unfair advantage in sports competitions and the belief that treatment of transgender youth is harmful and unfounded and very dangerous to the physical and mental health of transgender youth. Advocates who oppose the equal rights of transgender people and therefore oppose the law of equality are social and political conservatives and transgender exclusions who believe that “real” women are assigned to women at birth. It represents a problematic cooperation between radical feminists (commonly referred to as TERF). The Transgender Exclusion Group characterizes the broad definition of gender discrimination in equality law as weakening the protection of equality for “real” women. In their view, there are two genders (male and female). A person’s sexual identity is established at birth and cannot be changed “just because you like it.” They argue that the equality law “damages women’s rights because if gender is arbitrary, women no longer exist as a stable political class.” The logical and political values ​​of this position are a terrible misunderstanding of the meaning of transidentity, which is not a matter of emotion or choice. Even the Supreme Court refuses to accept the definition of sexual identity at birth, which describes transgender as a kind of third gender, or just a simulator or distortion of “real” men and “real” women. Did.

Importantly, the divisive objections raised by advocates denying transgender equality reflect the arguments raised by ERA opponents in the 1970s. There was something unnatural for women who defended their right to life beyond national territory. This debate was most prominently advanced by ERA opponent Phyllis Schlafly, a kind of “separated sphere” doctrine previously developed in the 19th century based on the concept of “true femininity”. Promoted. As historian Barbara Welke explains, women’s magazines and public education are obedient and obedient to her husband, where the woman’s identity attracts her, keeps her clean home, raises devout children. Claimed to have led to domestic pursuits such as. Women who violated these roles and this identity were at risk of being punished for violating their “nature.”

The idea of ​​”true” or “real” femininity, whether advanced by today’s transgender denial advocates, 1970s ERA opponents, or advocates of another territory of the 19th century, is , Even if you don’t deny it, it most often fuels limiting campaigns. Gender equality, not maintaining and advancing it. The sex-based essentialism it underpins has aimed to overcome the negligible past of gender equality advocates such as Ruth Bader Ginsburg, Pauli Murray, and supporters of ERA today. It is a way of thinking.

Finally, the premise of the trans-exclusive debate is that some sort of identity stability is needed to justify protection from non-discrimination laws. In fact, the law prohibits discrimination based on religion, marriage status, and citizenship, even if you can change your religion, marriage status, or citizenship.Identity immutability never before Prerequisite About eligibility for equal protection. The fact that transgender people claim genuine gender identity that may differ from the gender declared at birth does not undermine the legitimacy of the allegations against discrimination, nor does it undermine the legitimacy of the allegations of discrimination. It does not imply the legitimacy or authority of the law to deal with the allegations. By a cisgender woman.

ERA aims to strengthen and modernize the basic principles of equality at the heart of the US Constitution. Historically, gender equality has been advanced and defined not only by the cisgender of activation, but also by the contributions of blacks, queers, transgenders and gender-incompatible women. White women.groups are more out of the gender binary than ever before.

In addition, black and queer women led the time of ERA’s most important activation, and ERA is now more relevant than ever to sexual minorities and group equal rights other than gender binary.

Zerosum’s ideas of horror tactics and civil rights limit the equality movement and use these tactics over and over to conserve marginalized groups against each other, citizens as immigrants, and whites against colored races. Give to the school playbook. Instead, history teaches us that the fate of all those left behind, including colored people, women, LGBTQ, and non-gender-verified people, is tied to each other.

The principles of feminism and transgender rights are based on the common ethics of equality, dignity, physical autonomy, and self-determination. It challenges traditional gender norms that lock all left-behind gender into a second-class position. The unity and diversity of the ERA movement is its greatest strength, a robust and sustainable for the equality of all, rather than resorting to the notion of the right to give us the most privileged privileges. It should be used to build a movement.

See below for more information. Columbia Law School: ERA Project

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Written by Fem Society

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