Why We’re Still Fighting for the Equal Rights Amendment
October 09, 2024
December is Human Rights Month. While equality has been measured in terms of how many laws there are defining equality, the United States is based on interpretation of the law, making this measurement of equality truly lacking.
The 14th Amendment is supposedly the basis of equality in the United States because it goes further than solely having laws defining equal rights to applying those laws equally. However, when women’s rights, LGBTQIA+ rights, and rights on the basis of race are either consistently being voted on and/or not in existence, this constitutional amendment is not impactful.
According to former Supreme Court Justice Antonin Scalia, the 14th Amendment doesn’t even cover protections for sex or gender. When asked about it Scalia stated, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.”
The Equal Rights Amendment would be the basis from which those laws defining equality are equally applied. While the framework for women’s rights is equality among genders, there also needs to be equality between women.
Within the hetero-patriarchal structure, women are unequal to men in the gender confine, those who are not white are unequal to white people, and LGBTQIA+ are unequal to heterosexuals. Often, White women see the Combahee River Collective and queer theorists as undermining equality, when we really need to historicize women’s rights to see how the struggle for gender equality reinforces inequality. This is because “woman” has typically been defined as a white, cis-gender, heterosexual woman, which is inherently dismissive of women who are LGBTQIA+ and/or of another race.
A framework often used by white, cis-gender, heterosexual men is to not base equality in identity. However, we can never do this when equality has always been associated with identity. We cannot discredit identity in having equality when one’s identity initially determined who had rights to begin with (ie white, landowning men).
Also, the gender identity, sexuality, and race of White cis-het males is so inherent to the power structure of the country that people overlook that being a White cis-het male is still an identity in itself. The only way to have equality independent of one’s identities, as white cishet men want, is to have a foundation of equality for everyone.
Many women’s rights struggles have been solely about women’s rights, becoming inherently dismissive of racism, queerphobia, and other systems of power. Elizabeth Cady Stanton (who had three slaves herself) defined womanhood as “white womanhood,” which only reinforces inequality. To contextualize this, women are sexually assaulted but Frances Harper being sexually assaulted as an enslaved woman was not at all like Harriet Beecher Stowe being sexually assaulted as a White writer. Or, how the 19th Amendment of 1920 gave women the right to vote, Black women did not have the right to vote without the Voting Rights Act of 1965.
Human Rights Month is about the simultaneity of how equality has been defined on the basis of one’s identities, but also about how one’s identities should not be definitive of their equality. Not only would the Equal Rights Amendment be the foundation from which we can have equality among genders, but it would also include equality between women.
Additional reading:
- Freedom House scores countries on their civil and political rights. They define this with a very useful framework and analysis based on de jure v. de facto rights. De jure rights are rights written in the law, while de facto rights is what those rights actually mean (application of the law).
- Alok Menon, a gender nonconforming writer, has a GoodReads account that analyzes books on inequality on the basis of race, gender, and sexuality. Their profile has each book analysis.
