The future of sex anti-discrimination law in the age of Bostock.

This article was written by Lauren Bone as part of a series about the ERA.

“The word “women” is conspicuously absent from the ERA, which instead forbids discrimination on the basis of “sex.”... And yes, ERA advocates do want the amendment to apply to everyone: trans women and non-binary people included...Equal means equal. Period.”

— Delegate Danica Roem & Kate Kelly, Esq., Teen Vogue [1]

One of the key features of a post-ERA legal landscape is uncertainty. Our current case law (the law as established by the outcome of former cases) has made huge contributions to women’s progress - but it is built on intermediate scrutiny. Where case law has already led to sex-neutral outcomes (e.g. employment and housing discrimination), we can expect that strict scrutiny would lead to the same positive result. However, where the government has permitted the recognition of sex (e.g. women’s sports, single-sex spaces), differential treatment would be more easily challenged.

Case law and proposed legislation has already trended toward recognizing a person’s self-perception of sex instead of their actual sex. So, what happens when it becomes unconstitutional to recognize the difference between men and women in the law? While a court generally might not find a man’s argument against sex-segregated showers persuasive, existing case law has already been opening up exceptions to men’s exclusion from women’s showers if that man says he identifies as a woman. The ERA - raising the bar on when differential treatment between the sexes is allowed - leads us further down that path.

A veritable landslide of litigation can be expected if the ERA is passed—everything from Title IX provisions, women’s shelters, and sex as a bona fide occupational qualification would all be vulnerable. The gender lobby is prepared for such challenges, and it has the money and the cultural capital to be able to fund and promote them. The Supreme Court case Bostock v. Clayton County embraced the idea that sex discrimination and discrimination based on other characteristics related to sex (like sexual orientation and “gender identity”) are intertwined, and the Equality Act seeks to codify that bit of legal malpractice into federal law. Within hours of inauguration, President Biden signed an executive order directing federal agencies to dismantle single-sex spaces and services.

One common question about race being subject to strict scrutiny is how affirmative action programs, which allow racial preferences, could be legal. This has been a hotly contested constitutional question since such programs were first enacted. Courts have generally found that “benign racial discrimination”—that which exists to remedy past discrimination or mitigate a present disadvantage—is subject to intermediate scrutiny rather than strict scrutiny. This means that the government only needs to prove that the policy is “substantially related” to an “important government objective.” Courts have sometimes ruled that affirmative action programs, especially those related to education, meet the burden of intermediate scrutiny.

It’s easy to imagine a similar analysis post-ERA for sex, as much of our existing case law fits neatly into that framework. Look no further than Title IX, which says that “[n]o person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination” in education. Regulations on this provision explicitly say that female-only athletics are not only permissible, but in many cases are required in order to prevent discrimination. These regulations have been firmly and repeatedly upheld by state and federal courts…until now.

In their quest to compete on teams meant for women and girls, men and boys have won many recent victories both on the field and in the courtroom. In Connecticut, two male runners won 15 titles and broke multiple state records on the girls’ team, and have so far fended off legal challenges to their participation. In Idaho, a male runner won a preliminary injunction to prevent enforcement of a state law which says that only female athletes can compete on teams designated for women and girls.

The Ninth Circuit, where the latter case is being litigated, previously addressed a similar issue in the 1982 case Clark v. Arizona Interscholastic Association. In Clark, a boy sued because he was not permitted to play on the girl’s volleyball team. The court found that the law allowing female-only sports teams was an important government interest, and that it was necessary due to physiological differences and to redress past discrimination against girls.

The defendants in Hecox v. Little (the Idaho case) argued—correctly—that this case was binding precedent, meaning the courts were required to follow it. In both cases, state law said males were excluded from girls’ teams. In both cases, a single male individual challenged the blanket exclusion policy. In Clark, the court upheld the ban even though there was no boy’s team, which meant the plaintiff would not be able to play at all. In Hecox, the court ruled in favor of the plaintiff, distinguishing the case from Clark by saying that men who identify as women “have historically been discriminated against, not favored” (p. 64) and that limiting women’s teams to female athletes “entirely eliminates” (p. 65) the athletic opportunity for these men. The similarity of this legal reasoning to reasoning offered in affirmative action cases has alarming implications.

If the law does not consider ‘men who identify as transgender’ to be a subset of men, but instead a subset of women, and further considers that they have been historically discriminated against compared to and also by women, then affirmative action laws which not only permit but actually require representation of these men in female-only spaces and services could very well be in our future. If the ERA prohibits legal differentiation based on sex, then women have little recourse to challenge this analysis.

In 2019, the New York Democratic Party ended their “sex parity” rule which required 50% representation of women in party leadership positions. This was done ostensibly in an effort to include people who self-identify as “non-binary” since activists argued they were excluded by the rule—despite the fact that every person who identifies as “non-binary” is either a male person or a female person.

Six months later, one of the male campaigners for the rule change infamously won the “female” position of his NY district. While this situation arose out of a private institution and not the government (although the Democratic party rules the state government of New York), the ERA would likely have little effect. However, it is instructive as a glimpse into how well gender activists have trained elites to see anything that is exclusively for women as ‘unfair’ and even ‘dangerous’ to men who don’t identify as men.

One argument, embraced by supporters and opponents alike, is that the ERA would provide an additional legal mechanism to secure abortion rights. We believe that a strict scrutiny sex discrimination argument is unlikely to turn the heads of any federal judges who are already inclined to limit abortion access. The ERA would equally provide a new legal basis for challenging abortion rights - for example, intrusive laws prohibiting sex-selective abortion, or laws which require notification or consent of the father, such as this one introduced recently in Tennessee.

We cannot depend on the law to protect us when those implementing and interpreting the law are deeply entrenched in misogyny. Let us not make it easier for them to dismiss us and erase us as women.

[1] https://www.teenvogue.com/story/equal-rights-amendment-anti-trans-scare-tactics-op-ed