The Equal Rights Amendment is retro. It evokes images of Gloria Steinem, the 1970s, and a bitter loss in the fight for equality. In 2019, all things retro are suddenly popular and the ERA is no exception. There is an opportunity to expand the scope and rebrand the law from an outdated, predominately cis, white movement to an all-inclusive agenda that better fits the legal challenges of current and future generations.
The ERA reentered public dialogue largely thanks to movements like the Women’s March and #MeToo, but many states have quietly made tremendous progress on bringing this conversation back to the surface. In May 2018, Illinois became the latest state to ratify the federal ERA, making us only one state away from adopting the ERA into our federal constitution. Setting aside the inevitable legal challenges (namely sufficiency of the Fourteenth Amendment, passed expiration dates, and rescinded ratifications), we should begin discussing issues of interpretation that await us after adoption. The courts will need to decide how to interpret the ERA’s language, specifically the word “sex,” and whether equality of rights will extend to the LGBTQ+ community.
Unsurprisingly, there is disagreement in the legal context on how to interpret the word “sex.” Federal courts, however, have held that Title VII and IX’s prohibition against sex discrimination includes discrimination against transgender individuals. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018), cert. granted in part, 139 S. Ct. 1599 (2019) (holding that firing a trans woman for failing to conform to sex stereotypes violated Title VII), Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. Of Educ., 858 F.3d 1034 (7th Cir. 2017) (finding a school district would violate Title IX by preventing a transgender male student from using the boy’s bathroom). But under the current administration, relying on past precedent is risky.
Instead, states are in a much better position to protect individual rights. Remember, states are well within their constitutional bounds to expand on federal constitutional protections, and they do so regularly. Earlier this year Delaware added an ERA to their state constitution, joining 25 other states who have already done so. It would make sense for Wisconsin to go next.
Wisconsin has fallen behind in the fight for equality, especially within the Midwest. Even though Wisconsin was one of the first states to ratify the federal ERA in 1972, it failed to join its neighbors Illinois, Indiana, and Iowa in passing a state ERA. However, because Wisconsin previously failed to pass a state ERA, it now has an opportunity to pass one with the explicit intention of including the LGBTQ+ community, influencing the dialogue and debate nationally. This move would help Wisconsin come back into the arena as a policy making state on this issue.
Advancements on the state level will lay the groundwork for future federal interpretations. Wisconsin’s decisions would be persuasive to the Supreme Court in part because it is a political heavyweight, but also because Wisconsin has already played an influential role in litigating protections on the basis of sex, in particular for transgender individuals. See Flack v. Wis. Dep’t of Health Servs., 328 F. Supp. 3d 931, 951 (W.D. Wis. 2018) (holding differential treatment of transgender individuals based on sex-stereotypes is sex discrimination), Boyden v. Conlin, 341 F. Supp. 3d. 979, 1000-02 (W.D. Wis. 2018) (holding exclusion of certain procedures and services related to gender reassignment from health insurance coverage constitutes sex discrimination under Title VII and the ACA).
In this moment Wisconsin has an opportunity and a responsibility to ensure that equality of rights under the law will not be denied or abridged on the basis of sex, which includes not just women, but the entire breadth of the LGBTQ+ community.
This article was written by Josephine Clark, a law student at the University of Wisconsin-Madison, and Asma Kadri Keeler, a staff attorney at the ACLU of Wisconsin.