ERA could lose in transgender care case

The Supreme Court recently heard arguments in the Skrmetti case. This is a Tennessee law that bans puberty blockers and other procedures that affect the hormonal development of children.

Most news reports portray Skrmetti as a civil rights case in which conservatives support the law and liberals oppose it. This left-right discourse is misleading.

Ostensibly, it’s about whether children can be subjected to life-changing medical procedures, depending on whether their feelings about being male or female match their biology.

The far more important question is how the Court will classify transgender people as a class of persons under the Fourteenth Amendment.

When the Fourteenth Amendment was passed in 1868, it guaranteed “people” equal treatment under the law in what is known as the “equal protection clause.”

In a few cases over the years, the Supreme Court has ruled that certain categories of “persons,” such as race and national origin, are entitled to equal protection under extremely strict legal standards that prohibit almost all forms of discrimination.

In 1971, the Court finally ruled that women also had equal protection rights, but the ruling stated that women’s equal protection rights would be enforced under legal standards worse than those of race and national origin. Weird, I know. How can a person have unequal rights? But that’s what the Court said, and that’s why women fought so hard for the Equal Rights Amendment (ERA) in the 1970s and 1980s. They wanted equal rights in matters protection, and the ERA would grant it to them. It states: “Equality before the law shall not be denied or abridged…because of sex.” »

The ERA was three states short of ratifying it before the deadline expired in 1982. Most women dropped out. But then, in 1992, the 27th Amendment was ratified, and women cried foul because they had 203 years to ratify it – while the ERA was declared dead after just ten years.

The women decided to win three more states, then argued in court that the ERA’s ten-year deadline was unconstitutional, given the time allowed by the 27th Amendment. The Final State ratified the ERA in 2020 and women went to court, but both Trump and Biden fought against women and blocked the ERA.

So what does all this ERA talk have to do with Skrmetti?

In the Skrmetti case, the Supreme Court must decide whether trans people are “persons” entitled to equal protection rights and, if so, where in the hierarchy do they fall? Are they at the top because of their race and national origin, or are they stuck in second-class citizenship with the women? Any decent lawyer for trans people would ask for at least first-class status, but Skrmetti’s transgender lawyer asked for second-class rights, alongside women. Who does this?

Justice Alito asked that same lawyer if transgender was a “mutable” characteristic, because the Court has long held that people with “immutable” characteristics, such as race, must be afforded rights of first-rate equal protection. The lawyer responded that transgender is “immutable,” meaning it doesn’t change. Justice Alito sniffed and said transgender is obviously mutable because a person can identify as female today, male tomorrow, and female again after that.

Why is this so important for women?

Because in the 1970s, the Supreme Court declared that sex, like race, is determined at birth and immutable. This means that when the ERA is finally added to the Constitution, women’s immutable status will elevate them to the highest level of equal protection rights. But the trans community says sex is changeable, and it brought that ideology to the Supreme Court in the carefully planned Skrmetti case, giving the Court everything it needs to overturn its previous rulings that sex is immutable . When sex is declared mutable in Skrmetti, women will find themselves facing unequal equal protection rights, regardless of the ERA.

So why is Skrmetti decided now?

Because even if Biden still blocks the ERA, he is under pressure from women’s groups to enshrine the ERA in the Constitution before leaving office. As Director General he has the power to do this and many expect him to do so, but then the Skrmetti judgment will fall and the ERA will meet its final demise because the Court will announce for the first time in the story that sex is mutable.

This nightmare for women could have been avoided if trans people had simply petitioned the Supreme Court for equal rights protection for all, women as well as gay and trans people. But they didn’t, because the enormous amount of money spent litigating against Skrmetti was never about trans people; it was about keeping women unequal – forever.