JWI founder and director Hadley Arkes analyzes how the Equal Rights Amendment, which has staged a sort of comeback decades after its expiration date, remains indefensible and unworkable. While it faced a number of vexing questions just in the 1980s, the developments around gender and sexuality theory in the law that have occurred in the years since then have made those questions even more incoherent. Arkes recounts how the case for the Equal Rights Amendment withered under questioning at Senate hearings in 1983. Senate Republicans wanted to know what the ERA would mean for women's colleges, male-only seminaries, preference policies towards overwhelmingly male veterans. insurance rate discrepancies and even marriage. The proponents could only point to the cementing of a constitutional right to abortion as a concrete provision. They could not answer for any other question.

The real-world provisions of the ERA were muddled enough when senators and state legislatures were operating on one definition of sex, but the revisionist reading of sex discrimination in American law to include the transgendered leaves the amendment even more inexact. To combat the growing momentum of the ERA, its conservative opponents need to deploy the immutable truths of biology and sex, and to keep questioning the exact applications of the ERA.

Selected quotations appear below:

“The question arising for the ERA was whether it forbade virtually all discriminations based on ‘sex’ in a sweeping categorical way. Or on the other hand, was it yet open to the notion that discriminations based on sex were still plausible and legitimate, say, in colleges, the military, and athletic teams, to say nothing of locker rooms and bathrooms. If the latter, then the Amendment would offer nothing that is not already available under the Equal Protection Clause of the 14th Amendment.”

“When it comes to the ‘transgendered,’ any principle contained in the laws on discrimination have been run well past the edge of anything plausible or coherent. Any serious deliberation over the ERA today will be quite radically transformed by this new phase in our politics. For since that brief moment when the ERA rose brilliantly in the firmament—and then flickered out—the very meaning of ‘sex’ has become a fiercely contested term in our courts.”

“The States that had earlier ratified the ERA had no inkling of the argument over sexuality that would now be carried over into the Amendment they had ratified. If the backers are serious—and honest—they should introduce the Amendment anew; own up to the meaning that liberals would attach now to discriminations based on 'sex,' and open themselves anew to the old questions, bound to come back again."

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