Why Passing the ERA Is as Critical to LGBTQ+ Folks as the Equality Act

Today it has been exactly 50 years since Congress passed the Equal Rights Amendment. The ERA passed in the Senate March 22, 1972, by a vote of 84 to 8. It had passed the previous year in the House 354 to 23 -- so it then went straight to the states for ratification. In October of last year, to commemorate the 50th Anniversary of House passage, longtime ERA advocate Congresswoman Carolyn Maloney held the first full committee hearing on the ERA in 40 years.

Chairwoman Maloney had tried many times to hold a hearing over the years, even holding an unofficial "shadow hearing" in protest of being ignored by House leadership. The first woman ever elected to chair the House Committee on Oversight and Reform, Maloney was finally able to hold an official hearing. When asked by a reporter, "What's different about the hearing you're having now? What's different about the landscape?" the chairwoman highlighted the crucial importance of women in leadership at the highest levels of government: "One thing that's different is I'm chair of the committee and I can have the hearing."

Though it commemorated the 50th anniversary of the ERA, the hearing was not your grandma's ERA hearing. One of the most compelling witnesses was Bamby Salcedo, founder of TransLatin@ Coalition and the first Mexican-American transgender woman to testify before Congress. Salcedo donned suffrage white along with the other witnesses and began her testimony in Spanish, causing several of the Republican committee members to do a double take. As she continued on switching to English she directly tied protection of vulnerable trans people to the ERA, saying that while she supports legislation like the Equality Act, "the truth is that the Equality Act does not look at all of the intersections that cross my life and will not provide constitutional equality." With the recent deluge of attacks on trans people in many states, Salcedo implored members of Congress to back the ERA. Legislative fixes like the Equality Act, while important, will not provide permanent protection.

The Equality Act and a resolution to finalize the ERA are both currently pending before Congress but are stuck at the stage where the Senate has to vote on them. Both would strengthen legal protections against discrimination based on sex, which thanks to the recent Supreme Court case Bostock v. Clayton County under the ERA would include sexual orientation and gender identity. Keep in mind that the word "women" is nowhere in the language of the ERA -- it guarantees equality for all, regardless of sex. The Equality Act would codify the Supreme Court's decision in Bostock and explicitly bring LGBTQ+ people under the protections of federal law in the workplace as well as other areas like public schools, housing, credit opportunities, juries, federally funded programs, and public accommodations (which includes private facilities that are open to the public).

So, why do we need both? Isn't passing the Equality Act enough? Do queer people really need the ERA?

As this policy brief by Columbia Law School's ERA Project explains, "The ERA and the Equality Act are mutually reinforcing pillars of equality." The Equality Act is a piece of legislation that will modernize federal law to include protections for LGBTQ+ people, but of course, legislation is always up for repeal or modification, given the whims of who is in Congress at any given time. Depending on who is in the next administration, the Equality Act could completely be whittled down or stripped away. The ERA, on the other hand, is a permanent anchor that once cemented into the U.S. Constitution will be practically immovable. Only another constitutional amendment could revoke it, which has only happened one time in the history of our country (prohibition).

Fifty years ago, opponents of the ERA tried to stoke women into a panic to act against their interests and oppose constitutional equality. Anti-ERA activists like Phyllis Schlafly used bogeyman arguments that the ERA would legalize same-sex marriage (that's already happened), force gender-neutral bathrooms on people (those exist in many places already), and increase rights for LGBTQ+ people. The modern opposition to the ERA has homed in on anti-trans arguments as a way to drive a wedge between cis and trans women and sow discord.

Lamentably, opposition to including trans women in legal protections not only comes from political conservatives but also trans-exclusionary radical feminists (commonly referred to as TERFs) who insist that "real" women are assigned female at birth. But it's important to keep in mind that strictly defined roles for anyone based on their gender is precisely what feminism is designed to fight against. In the 1970s ERA opponents like Schlafly maintained that "real" women were destined to be housewives and that women who wanted a life beyond the domestic sphere were unnatural. Today's ERA activists insist that this harmful rhetoric will not prevail and have banded together to firmly state that the Equal Rights Amendment can't be defeated by anti-trans scare tactics.

TERFs would have us believe that including trans women in our movement for equality puts cis women at risk. Nothing could be further from the truth. In fact, trans women like Virginia Delegate Danica Roem, the first out and seated transgender state legislator in U.S. history, have been at the forefront of fighting for the modern ERA, which is succinctly articulated in the policy brief by Columbia Law School's ERA Project:

"The premise of the trans-exclusive argument assumes that a kind of stability of identity is required to justify protection from anti-discrimination laws. In fact, the law prohibits religion, marital status, and citizenship-based discrimination even though one can change one's religion, marital status, or citizenship. Immutability of identity has never been a sine qua non for eligibility for equality protections. The fact that trans people claim an authentic gender identity that may be different from their sex declared at birth does not in any way undermine the legitimacy of their claims to discrimination, nor does it implicate the legitimacy or authority of the law to address discrimination claims raised by cisgender women."

To get permanent constitutional protection for all LGBTQ+ Americans, and specifically transgender Americans -- we need the finalize the ERA. There are three paths to victory for the ERA, one in each of the branches of government. President Biden could instruct the national archivist to certify and publish it; a case on the ERA is currently pending in the D.C. Circuit and a court could decide to finalize it; or the Senate could vote on an ERA bill already passed by the House last year. The ERA will extend the fundamental values of constitutional equality to those who experience discrimination on the basis of sex, and it's time that we officially enshrine those protections into our most foundational legal document.

While the Equality Act would initiate immediate and desperately needed changes to legal equality by expanding existing civil rights laws to cover queer people, the ERA will insulate sex equality protections from the whims of Congress. It will form a solid foundation for the Equality Act and even bolder legislative reforms needed in the future. As Salcedo of the TransLatin@ Coalition put it, "I want you to ask yourselves ... Do I want to be on the right side of history? I hope your conscience answers yes, you do! I invite you to reimagine a new world, a world of constitutional equity, equality, and freedom for all!" Let's not wait 50 more years to get this basic protection 85 percent of other countries already have into the Constitution.

Kate Kelly is the author of Ordinary Equality: The Fearless Women and Queer People Who Shaped the U.S. Constitution and the Equal Rights Amendment.