It All Depends on the Definition of “Sex”

April 6, 2018
Why ERA Would Be Bad For Women

On the surface, the Equal Rights Amendment seems quite innocent. The main text states, “Equality of rights under the law shall not be abridged or denied by the United States or any state on account of sex.”

Unfortunately for women, from a legal perspective, this simple language raises the category of “sex” to strict scrutiny which is the most restrictive standard of legal review.  Under strict scrutiny, no one can be treated differently based on the characteristic that has become “suspect” (in this case – sex), and it is almost impossible to justify before the court any reason for treating them differently. Currently race, national origin and religion are all justifiably adjudicated in this category. As a result, we can not treat anyone differently based on their race, national origin, or religion. Sex, however, is different from these other categories, in that there are clear biological differences (such as anatomy, hormones, chromosomes, ability to bear children, and privacy needs) that require a need to differentiate between men and women for the well-being and success of both men and women.

The push for women’s rights has always been about providing equal opportunities for women, and removing any obstacles that prevent them from having equal opportunities.  It was never about making women fit into the mold of men, or making women become men. Since the civil rights movement in the 1960s, this push has resulted in careful adjustments of laws to ensure that women were supported in their endeavors, and these laws have often taken into consideration biological differences to provide for equal access to success. A prime example is the pregnancy accommodation law Illinois recently passed that provides pregnant working women in physically demanding jobs additional breaks and other temporary accommodations to protect them and their developing child during their pregnancy while still enabling them to retain their job.

Under the ERA with its requirement of strict scrutiny, any laws that provide different treatment to women, even when it logically makes sense to do so, would be overturned – thus removing valuable supports for women, and placing obstacles in their way to success.  Under the ERA, one could simply argue that the pregnancy accommodation law shows preferential treatment for women in violation of the standard of strict scrutiny, and that beneficial law would be overturned.

When presented with these concerns, many feminists protest that the courts would never allow these valuable programs and practices to be overturned.  They seem to view the courts as a place where laws can be made up or dismissed. Obviously they don’t understand the requirements of strict scrutiny.  Because the ERA places sex under strict scrutiny, judges and lawmakers will be unable to change any of the extreme requirements of the ERA.  Justice Ginsberg wrote a lengthy report in the 1970s, titled, Sex Bias in the U.S. Code, detailing the impact of the ERA, and she made it very clear that the ERA would overturn all instances of differentiation based on sex.
Examples of additional beneficial laws and programs that would be overturned include:

  1. Financial support to educate women:  Several philanthropic organizations promote educational opportunities for women, many of whom are single parents, through scholarships and loans. These organizations would be forced out of existence by the ERA if they didn’t also provide equal financial support to men.
  2. Shelters, transitional housing and self-sufficiency programs for homeless and/or abused women and their children.  Men are not allowed in these shelters due to the emotional needs of the women.  The ERA would not allow these programs that only provide benefits to women.
  3. The federal Women, Infants and Children (WIC) program provides medical and nutritional support to low income child-bearing women and their children.  Such a beneficial program and others like it would be overturned because preferential treatment is being given to women.
  4. Separate prison facilities for men and women:  Currently men and women prison inmates are housed in separate prison facilities due to privacy, safety and rehabilitative needs.  A recent Illinois prison study advocated that a different approach be provided to incarcerated women due to their emotional response to stress and their histories with physical, sexual and emotional abuse.  Providing improved gender based responses through staff training will decrease recidivism for women, shorten their length of prison time and help them become more successful after prison.  Such a gender-based approach greatly benefits women, but Supreme Court Justice Ruth Bader Ginsberg has stated that under the ERA, prisons would have to be sex integrated.  Gender-based approaches would also be overruled.  (cjinvolvedwomen.org, and Ruth Bader Ginsburg, Sex Bias in the U.S. Code)
  5. Exemption of women from the military draft and compulsory front-line combat.   Currently women who feel they are physically able can choose to enlist in the military and even participate in front-line combat.  Justice Ginsberg says that the ERA, however, would require that all women be drafted and placed on front-line combat in equal ratios to men.  No exceptions could be made for women with children in the home.  If men with children at home can be drafted, then women with children must also be drafted.  Women face increased sexual vulnerability in the military as well as greater physical difficulties based on biological differences.  Ruth Bader Ginsburg, Sex Bias in the U.S. Code.
  6. Laws and presumptions that support women in the areas of alimony, child support, and requirements of husbands to pay for their dependent wives’ medical bills.  The ERA will also wipe out state laws that exempt a wife from having to pay her husband’s debts even if he deserts her with children to support. Coleman v. Maryland, 37 Md. App. 322, 377 A.2d (1977); Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974)/ Albert Einstein Medical Center v. Nathans, 5 D&C 3d 619 (1978).
  7. Social Security benefits for stay-at-home mothers based on their spouse’s income. Whether the social security administration calls it a benefit for ‘wives,’ or ‘spouses,’ Justice Ruth Bader Ginsberg said that it will still be overturned by the ERA because it violates the equality principle by encouraging women to be dependent on their husbands.  Ruth Bader Ginsburg, Sex Bias in the U.S. Code.
  8. All laws and practices that provide gender related privacy in regards to bathrooms, locker rooms, hospital rooms, nursing homes, etc. would be nullified because they make distinctions based on sex.
  9. Any other laws or practices that provide unique support to women.

The lawmakers of Pennsylvania learned the harsh results of their state ERA when gender based automobile insurance rates that favored women due to their safer driving record were disapproved by the state insurance commissioner due to a claim of sex discrimination.  The lawmakers quickly passed a law allowing gender based insurance rates, only to find that their state Supreme Court overturned the law due to the strict requirements of their state ERA. (Hartford Accident & Indemnity Co. v. Insurance Commissioner, 482 A.2d 542 [Pa. 1984] and 543-44).    Other states who have passed state ERAs have also witnessed their ERAs being used to remove beneficial laws for women.  Once we pass this federal amendment, we must live under its harsh requirements which will not benefit women.  Instead it will remove the many laws, programs and practices we have carefully crafted to provide women with equal opportunities for success.

Clearly the ERA will not benefit women.  Instead, it will force them into being treated exactly as men regardless of any biological differences.  Please oppose the ERA (SJRCA4) and its strict scrutiny requirements.  For those who want a women’s rights amendment in the U.S. Constitution, tell them to write a better amendment that won’t harm women.

If you’re alarmed about the impact of the ERA, please call your Illinois state senator and state representative and ask them to support women by voting against the ERA.