The ERA Is Queer and It Always Has Been

One year ago today, January 27, 2020, lawmakers in Virginia made history -- becoming the 38th and final state needed to ratify the Equal Rights Amendment to the U.S. Constitution. One of the key pro-equality legislators in Virginia was Del. Danica Roem. She's the first out-and-seated transgender state legislator in U.S. history, proudly serving the 13th District of the Virginia House of Delegates. When I met Roem (pictured, center) in Richmond in 2019, she was wearing an ERA necklace that her mother had worn in the 1970s. It struck me as such a beautiful symbol of the unique generational nature of our now century-long fight for constitutional equality.

One thing Roem's advocacy makes clear is that the ERA is queer. But this is not new. Queer people have always been at the forefront of changing the U.S. Constitution to protect the community from discrimination on the basis of sex.

When constitutional reform for women was all the rage in the late 1800s, many prominent suffragists were quietly living their best queer lives. Suffrage leader Susan B. Anthony had two documented "lovers," which is the word she used at the time to describe her romantic relationships with Anna Elizabeth Dickinson and Emily Gross. National American Woman Suffrage Association President Carrie Chapman Catt was in a longtime committed relationship with Mary Garrett Hay, a suffragist leader from New York. The two lived together for decades and insisted on being buried side by side. Alice Paul, coauthor of the ERA and longtime advocate, refused to marry a man and is rumored to have had a possibly romantic relationship with fellow suffragist Lucy Burns. Were there straight suffragists? Sure, but it makes sense that queer women rose in the ranks of suffrage leadership -- they were often unmarried and had no children to care for, which took up considerable amounts of time for most women.

Feminist leaders were also queer in the sense that they rejected gender norms and roles for relationships. Crystal Eastman was a suffragist, cofounder of the American Civil Liberties Union, and one of four authors of the Equal Rights Amendment. She was a prominent supporter of the amendment until her death in 1928. Eastman was a vocal proponent of "free love," a movement at the time that taught sexual matters were the concern of the people involved and not the state. Though she was married twice to men, she lived a radical lifestyle and wrote about it publicly. Eastman wrote one of her most famous pieces in 1923, called "Marriage Under Two Roofs," which caused quite a stir. In it, she admitted she and her husband did not live together, and she argued that having "two roofs"' was much better than trying to live under one. Eastman said that because it offered greater autonomy for women, living separately created stronger, happier families and love lives.

Pioneering Black activist, lawyer, and Episcopal priest Pauli Murray (pictured above, right), who has posthumously been identified by many as transgender, came up with the legal theory that discrimination "on the basis of sex" is prohibited under the Constitution. Ruth Bader Ginsburg credited Murray's work as the inspiration for her 1971 brief in Reed v. Reed, the first major Supreme Court case that addressed discrimination based on gender, in which the court ruled such discrimination unconstitutional under the equal protection clause of the 14th Amendment.

Born Anna Pauline Murray in 1910, Pauli wrestled with issues of gender identity throughout life, often presenting as a boy or man. Denied entrance to Harvard due to gender, Murray said, "Gentlemen, I would gladly change my sex to meet your requirements, but since the way to such change has not been revealed to me, I have no recourse but to appeal to you to change your minds on this subject." A longtime supporter of the ERA, Murray testified in favor of its ratification at a 1970 Senate hearing, "I suggest that what the opponents of the Amendment most fear is not equal rights but equal power and responsibility."

Barbara Jordan (pictured above, left) was the first Black woman from the South elected to the U.S. House of Representatives. She represented Texas's 18th district from 1973 to 1979, key years for ERA ratification. In 1978, with the ERA's initial seven-year deadline for ratification by three-quarters of the states fast approaching, Jordan was one of the congressional leaders advocating for a three-year extension. "The Equal Rights Amendment proposes to fulfill our liberties," she argued. The deadline extension passed.

Jordan was never married, and her companion of 20 years was a woman named Nancy Earl. Though she was not out at the time, it is now widely understood she was a lesbian. At a 1974 hearing on the possibility of impeaching President Nixon, Jordan said of the Constitution, "'We the people.' It is a very eloquent beginning. But when the document was completed on the 17th of September 1787, I was not included in that 'We the people.' I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation, and court decision I have finally been included in 'We the people.'"

Even when the ERA fell three states short of ratification in 1982, many women never gave up. Some worked tirelessly for decades to get additional states to ratify. In 2017, Pat Spearman, a Black lesbian state senator in Nevada, resurrected the ERA and got it ratified -- the first state to do so in 40 years. In a hearing on the ERA in Congress in May of 2019, Spearman testified that she has experienced discrimination on many levels all of her life.

"I am a woman. I am African-American. And I am a member of the LGBTQ community. The discussion of equality is one I've been in all of my life. ...We're not talking about special rights here; we're talking about equal rights," she said.

She highlighted the absurdity of a largely male Congress even debating women's rights.

"People who were born in privilege always debate whether or not those of us who were not deserve equality. Equality is not debatable; we are born with it. All we are asking is for it to be recognized," she said.

Despite the ratifications by Nevada, Illinois a year later, and then Virginia, the ERA has still not been added to the Constitution. That's because there are "two procedural questions with no settled answer," as the Brennan Center for Justice puts it. One is whether the ratifications that came after the 1982 deadline are valid, and the other is whether five states that have revoked their ratifications actually had the power to do so. These questions will be settled in either Congress or the courts, so the battle for the ERA goes on.

The fight for constitutional equality is now and has always been a fight for and by queer people. LGBTQIA people at the forefront of the fight for the ERA is an inspiring legacy, not a modern afterthought. Now the Supreme Court ruling in Bostock v. Clayton County has clarified the legal phrase "on the basis of sex." In Bostock, Justice Neil Gorsuch wrote for the majority, "It is impossible to discriminate against a person for being homosexual or transgender without discriminating ... based on sex."

Section 1 of the ERA states, "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex," so, given the Bostock ruling, it's more relevant now than ever to the queer community. The LGBTQIA community has the most on the line when it comes to the ERA. It's a way to cement the protections the court outlined in Bostock permanently in the U.S. Constitution and to do much more.

Queer people today, myself included, continue to be on the front lines of the struggle to ratify the ERA. We are now closer than we've ever been. As we work to get it across the finish line and into our nation's most foundational document, let's not forget the LGBTQIA people who got us this far, fighting for nearly a century for the legal equality they would never personally benefit from. They had a vision for a more inclusive future -- let's make that equal future they envisioned a reality today by ratifying the ERA.

Kate Kelly is a human rights attorney and national ERA advocate. Follow her on Twitter @Kate_Kelly_Esq.