The 50th anniversary of the Equal Rights Amendment, or ERA, prompted reflection from the UC Berkeley community on both the impact of the proposed legislation and what the country has yet to accomplish.
The ERA is a piece of legislation that would ensure, under law, equality of rights regardless of sex. The idea of reform had been pressed for as early as the woman’s suffrage movement, with Alice Paul, Crystal Eastman and others of the National Women’s Party drafting the Lucretia Mott Amendment — the first version of the ERA. Martha Griffiths, a House representative, later brought a different version of the ERA to a successful passage in Congress. It was approved in the U.S. Senate in 1972 and later sent to state legislatures for ratification, on track to become the 27th constitutional amendment. To solidify the legislation, 38 state legislatures needed to ratify the amendment within a seven-year time frame.
However, anti-ERA sentiment, expressed by individuals like Phyllis Schlafly, became more prominent in the 1970s when the ERA was being sent to state legislatures. Despite the time limit being extended even further, until 1982, it was never ratified by enough states.
Leslie Salzinger, campus professor and chair of the department of gender and women’s studies, noted she doesn’t believe it is time to say no to an amendment that forbids discrimination on the basis of sex, especially given the recent overturning of Roe v. Wade. She added that the ERA’s language shouldn’t be legally interpreted as narrowly non-intersectional and biological, as in 2020 Supreme Court case Bostock v. Clayton County, it was ruled that the word “sex” can be interpreted to include gender identity and sexual orientation.
“That said, a better amendment would more explicitly recognize the fact that discrimination by “sex” varies across and is co-constituted with race, class, disability and a host of other forms of domination,” Salzinger said in an email. “That ‘sex’ itself is a category that is always constituted in the body, the psyche and social space simultaneously, and that protections around ‘sex’ include the right to name and transform one’s own.”
While sex is considered to be synonymous with both gender and sexual orientation in the ERA, campus law professor Kathryn Abrams specified that the application of these legislations is not necessarily a unilateral protection for all communities.
Campus sophomore Catherine T. noted that they feel that transgender, gender-nonconforming and non-binary people are usually excluded from important conversations because they are not the “default.” They added that medical and health resources are often offered in a binary way, with some medical offices not using gender-inclusive language.
“Thinking about gender in isolation from race, or socioeconomic or immigration status, or sexuality, or a number of other features of identity doesn’t protect all women,” Abrams said in an email. “It certainly doesn’t protect those who don’t identify as women or men: to think about gender as a binary is common in law … and underwrites most constitutional thinking about gender equality.”
Abrams added that two leading feminists, Catharine MacKinnon and Kimberlé Crenshaw, have worked on a different proposed amendment to address gender inequality in a more intersectional way.
However, even with an ERA that is more intersectional, the role of federal courts as interpreters of constitutional law would impose a limit on the effectiveness of the legislation, according to Abrams. The recent Dobbs v. Jackson Supreme Court case serves as an example of the role of the federal court’s interpretation of the Constitution.
“As someone who teaches stigmatized topics and bodies to 3rd-5th graders, it is deeply saddening and frustrating that we have been thrust into the forefront of the culture wars,” T. said in an email.
They noted that federal legislation like a “Don’t Say Gay” bill were recently introduced by House Republicans.
The bill, inspired by Florida legislation, would significantly impact the representation of gender identity and sexual orientations in literature and curriculum at schools and federally funded institutions.
“I am not sure if the library I teach at gets federal funding, but it is absolutely terrifying how they are trying to erase our existence and essentially control people’s thoughts,” T. said in the email. “In many ways, it not only feels like we are being marginalized, but we are being pushed out of existence.”