ERA 2.0: A Step Backwards from ERA 1.0

The Equal Rights Amendment to the United States constitution was almost ratified in 1982, falling only 3 states short.

It would have been better for women and men had it become law. But efforts to resurrect ERA have continued, though the agenda appears to have shifted.

The previous ERA stated that “equal rights under the law…shall not be denied…on account of sex”. Its current iteration in Congress states that “Women shall have equal rights in the United States”.

Though reintroduction of ERA is nothing new, it has made headlines recently because it is finding bipartisan support.

That today’s language is less inclusive than the past has gone without notice, however. Sex clearly includes women, men, and intersex (though the authors might not have been thinking about that).

Today’s amendment, though, referring specifically to women, makes it unclear whether any sex other than women is included.

It does go on to state 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”. But the first statement, referring exclusively to women, makes the later reference to sex ambiguous. Does the second statement open ERA to all sexes, or does the word sex refer only to women as indicated in the first statement?

I’m not an attorney, so I welcome the comments of legal experts.

Frankly, I think the earlier ERA language, with its clear inclusiveness, is better. If I could revise it, I would make it “sex and gender”. But I wouldn’t revise it to refer to one sex only.

After all, does the reference to women include transgender women? Are transgender men included in this version of ERA? Perhaps these are questions only the Supreme Court could answer.

ERA is important for men too. When applied to all sexes, it would mean that shared parenting is an equal right. That maternity and paternity leave must be equal. That men cannot be forced into parenthood anymore than women can be. That genital integrity applies equally to men – that is, male circumcision is genital mutilation. That women must be allowed in combat (and will in the US in 2016), and the military draft must apply equally to women and men. That the criminal sentencing discount women currently enjoy – which is greater that the white sentencing discount – must be addressed.

 

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