More Equal Rights Amendment Thoughts

Virginia’s State Senate has passed SB 284, a resolution ratifying the Equal Rights Amendment (ERA) by a 26-14 vote.  Republicans, including my Senator (Ryan McDougle) cast all 14 no votes.  The House version, HJ 577, now sits in that body’s Privileges and Elections Committee. It’s not clear yet whether the Chair of that Committee, Delegate Mark Cole, will even allow a vote, and I’d be surprised if he lets this out of his Committee.

The ERA seemed on a fast track for ratification when Congress sent it to the States in 1972. Large bipartisan majorities supported it, as did President Nixon (and later Presidents Ford and Carter).  Then Phyllis Schlafly organized a “STOP ERA” campaign to protect what she and other conservative women saw as female privilege.  Schlafly and her supporters argued that the ERA would eliminate gender-specific protections against drafting women for military service and forcing them to share public restrooms, as well as “dependent wife” benefits under Social Security.  Largely a religious movement, these activists also believed in a social structure dominated by men.  Their attacks on the ERA focused on the ways it could hurt women by limiting the ability of government to protect women from abuse by men who had more agency and power within this structure, but their true goal included protecting traditional male and female social roles.  

Reasons for opposing the ERA haven’t changed much.  They still amount to “but this would mean qualified women could attempt to take on traditionally male social roles.”  One of the examples in this letter to the editorof my local free weekly paper, the Mechanicsville Local, makes my point.  The ERA would “…erode the distinctions in the law between men and women so that schools cannot have sex-segregated sports programs,” the writer worries.  He cites Darrin v Gould, a Washington State Supreme Court ruling that reversed a lower court ruling that allowed a public school system to bar two female students from playing on a high school football team.  The girls both qualified in every way to play on the team.  They met physical and medical standards, participated in practice sessions as required, and met all administrative requirements.  Government excluded them from participation under an arbitrary rule: no girls allowed, and for conservatives this is the point.

The Constitution does not generally constrain private citizens or the organizations they join or create except inasmuch as it empowers government to regulate practices when needed to support a compelling government policy (e.g., protect water quality or prohibit discrimination in the marketplace).  The ERA would simply further limit Government power by specifically requiring neutral government treatment without respect to sex (not gender) in government policy and regulation of individual, group, or organization behavior.  

This means Government could not favor organizations that discriminate against women with subsidies or tax preferences.  Women who can meet the neutral standards based on the requirements of the job or activity should have access to that job or activity.  Conservatives fear this because they know it could indeed mean the end of tax subsidies for religious and other organizations that discriminate (see for example Bob Jones University v US).  People have a right, of course, to “free exercise” of a religious belief that God wants women excluded from positions of leadership in their churches.  They do not have a right to state sanction of this discrimination in the form of tax preferences.  

They also worry that it would mean more women at the top of traditionally male professions such as military combat service.  Demonstration of combat leadership skills by women does not support the conservative “men and women are objectively different” view of the world.  I spent 20 years as an Army combat soldier, and women were excluded from the Armor branch I served in simply because of the “no girls allowed” rule then in force.  I can tell you from personal experience that many women are quite capable of meeting the physical, mental, and leadership requirements for service in combat units – just as many men are not.  And arguments that it would damage unit cohesion amount to a case that Army officers and NCOs are poor leaders who cannot manage change.  Bravo sierra.

Most of all, I suspect, they worry that courts could interpret the ERA to mean that government cannot make and enforce their preferred categorization of Americans as objectively male or female, or privilege in any way social organizations that wish to.  This would limit the ability of religious organizations to resist social acceptance of people who do not consider themselves one or the other.  All of this amounts to a conflict between those who support the existing social structure and roles that privilege men (especially white men) and those who want women and people with a less didactic sexuality to have more agency and social power.

Societies change.  Stagecoaches and slide rules have come and gone, and this is no less true for social roles.  We should task government to stay neutral in the resulting community debate, and an ERA mandates this neutrality.  If elected officials insist on resisting this change, we need to elect new officials.

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