Gender and the Law Blog

Trans Animus Under an Equal Protection Analysis

Scott Skinner-Thompson, Trans Animus, Boston College L.Rev. (forthcoming)  

Anti-transgender legislation is sweeping the nation with devastating consequences for trans lives. Each piece of legislation is generally challenged in isolation and conceptualized under the Equal Protection Clause as involving either impermissible sex classifications or classifications against transgender people. These frames are accurate but insufficient to fully capture the scope and harm of the laws on trans lives. These all-encompassing laws must be unequivocally identified for what they are: a product of animus violating the Equal Protection Clause. Through its detailed analysis of these laws and their legislative history, this Article demonstrates that animus is evident from the laws’ overbreadth, underinclusiveness, fabricated or pretextual government interests, and direct legislative statements of animus. As this Article contends as its central thesis, framing the anti-trans legislation as rooted in animus toward transgender people may help lead to greater—and more efficient—litigation success, but will also avoid the pitfalls of Equal Protection suspect classification doctrine which essentializes and forces identities into rigid, exclusionary boxes. Drawing from principles of restorative and transitional justice, the animus framing also has the potential, perhaps counterintuitively, to lead to greater social healing of the fissures being created by the culture war aimed at transgender people.

TX is the Latest State to Drop the Tampon Tax, Bringing the Total States Now to 24

NYT, TX Drops the "Tampon Tax," the Latest State to Do So

On Friday, a bipartisan Texas bill that eliminates sales taxes on menstrual products went into effect, making it the 24th state in the country, as well as District of Columbia, to remove what is colloquially known as the “tampon tax.”

Before the shift, Texas had classified period products, including pads, tampons, menstrual cups, discs and sponges, as optional or luxury items and applied a 6.25 percent tax. Opponents of the tampon tax have long claimed that because other items — like contact lenses and over-the-counter medications in most states — are categorized as necessary and therefore sold tax-free, the tax on period products is discriminatory against those who menstruate.

“Every woman knows that these products are not optional,” Republican State Senator Joan Huffman, who spearheaded the bill in the Senate, said in a statement. “They are essential to our health and well-being and should be tax exempt.”

The new law also eliminates taxes on adult and children’s diapers, baby wipes, bottles, maternity clothes and breast pumps. Sales taxes on period products, which can cost up to $20 every month, vary by state but they range from 4 to roughly 7 percent.

Dropping the tampon tax is part of a broader effort by student activists and lawmakers to make these products more accessible, echoing efforts in other countries, like Scotland, where period products are available for free. In the United States, 26 states and the District of Columbia have laws to offer free menstrual products in schools, and 25 states have laws to provide them in prisons. A new law introduced in Congress this year, the Menstrual Equity for All Act, proposes mandating Medicaid coverage of period products.

There are 21 states in which menstrual products are taxed, while other products, like Viagra, candies and condoms, are generally not, Ms. Herman said. (The remaining five states don’t have sales taxes on anything.)

The first state in the country to drop the tampon tax was Minnesota in 1981, but the issue had been “largely ignored” elsewhere for decades, said Laura Strausfeld, founder and executive director of Period Law.

Ohio Constitutional Amendment to Protect Choice of Abortion Triggering Significant Misinformation

An update on the Ohio abortion amendment on the ballot this fall, including some of my thoughts.

ABCNews, Julie Carr Smyth & Christine Fernando, An Ohio Ballot Measure Seeks to Protect Abortion. Opponents Messaging is on Parental Rights, AP, ABCNews &   Politico

The wording of a proposed constitutional amendment on Ohio's fall ballot to ensure abortion rights seems straightforward: It would enshrine the right “to make and carry out one's own reproductive decisions.”

Yet as the campaigning for and against the nation's latest tug-of-war over abortion begins in earnest this weekend, voters are getting a different message from the measure's opponents. They are characterizing it as threatening a wide range of parental rights.***

To try to reverse their string of losses, anti-abortion groups are using the Ohio campaign to test arguments over parental rights and gender-related health care as potentially a winning counterpunch.

“It’s clear that the misinformation about abortion is not winning,” said Elisabeth Smith, director of state policy and advocacy at the Center for Reproductive Rights. “It didn’t win in Michigan. It didn’t win in Vermont. It didn’t win in Kansas. It didn’t win in Kentucky. So instead, we are seeing anti-abortion factions in search for that new, winning talking point.”***

Ohio already has a parental consent law governing minors' access to abortion. Cooke said the amendment's wording means that would become unconstitutional, along with possible new laws aimed at restricting minors' access to gender-related health care.

Tracy Thomas, a University of Akron law professor who directs the school’s Center for Constitutional Law, was among several legal scholars who said that reading of the amendment is a stretch.

“It is a straw argument, a false argument that they're setting up,” she said. “Children do have constitutional rights, but we have lots of examples in the law, both state and federal, where these children’s rights are limited. Marriage is a good example.”

And a different, expanded version of the article is here, Ohio Votes on Abortion Rights This Fall. Misinformation About the Proposal is Already Spreading

Independent legal experts say it’s a stretch to suggest that also means gender-related health care. That legal theory has not been attempted in other states.

Tracy Thomas, a University of Akron law professor who directs the school’s Center for Constitutional Law, said the term “decision” could be essential in interpreting the language.

“A reproductive decision to me, is a decision to reproduce or not to reproduce,” she said. “The only word there that might arguably be raised (as tied to gender-related care) is fertility treatment. I think fertility treatment is IVF. It means treatment for the purpose of reproducing.”

Eight States Could Amend Constitutions in 2024 to Protect Abortion Rights

Carrie Baker, Ms., AZ Ballot Measure in 2024 Elections Could Protect Abortion

The proposed Arizona amendment was announced the same day Ohio voters resoundingly rejected Issue 1, which would have made it harder to amend the state constitution—including a ballot measure that seeks to ensure the constitutional right to abortion, which will now officially appear on the ballot for Ohio voters in November. “Republicans should be ashamed of their efforts to subvert the will of voters,” NARAL Pro-Choice America said in a statement on Tuesday night about the vote. “Seeing this measure defeated is a victory for our fundamental rights and our democracy.”

Seven other states could join Arizona in voting on abortion-rights ballot initiatives in 2024. Already, the 2022 election season saw six ballot measures on abortion across the U.S.—and in all of them, the pro-abortion rights position passed decisively. These citizen-led initiatives en masse show that American voters are making the connection between abortion access and principles of democracy, and voting accordingly.

Bruce Ching on "Through a Lens of Genocide: A Different Approach for Hate Crimes Legislation"

Bruce Ching has published a new article, Through a Lens of Genocide: A Different Approach for Hate Crimes Legislation, in 75 Rutgers U. L. Rev. 535 (2023). Here is the abstract. 

Hate crimes perpetrators select their victims based on the victims’ identity groups. Policies underlying legislation against hate crimes recognize that such crimes inflict greater harm on society than do the same actions committed for non-biased motives. Genocide may be conceptualized as hate crimes writ large; conversely, a new model of hate crimes legislation might be patterned on legal concepts of genocide scaled down to state or local levels. This new recognition could successfully address criticisms from both liberal and conservative factions along the political spectrum, offering a model that state and local governments could invoke for dealing with bias-motivated incidents that feature the perpetrators’ systemic intent, without focusing on more marginal occurrences. Thus, the hybrid model of hate crime as genocide could appeal to the remaining legislatures that have refused to adopt hate crime statutes, as well as to prosecutors who have had reservations about charging suspects under existing hate crimes statutes. The conceptualization of hate crime as genocide on a state or local level could also encourage local authorities to take action when federal law enforcement is either unable or unwilling to do so.

Women Congress Members Argue that ERA Deadline Was Discretionary, and That Amendment is Already the Law of the Land

NYT, Democrats Try a Novel Tactic to Revive Equal Rights Amendment

Democrats in Congress are making a fresh push for the nearly century-old Equal Rights Amendment to be enshrined in the Constitution, rallying around a creative legal theory in a bid to revive an amendment that would explicitly guarantee sex equality as a way to protect reproductive rights in post-Roe America.

Senator Kirsten Gillibrand of New York and Representative Cori Bush of Missouri introduced a joint resolution on Thursday stating that the measure has already been ratified and is enforceable as the 28th Amendment to the Constitution. The resolution states that the national archivist, who is responsible for the certification and publication of constitutional amendments, must immediately do so.

It is a novel tactic for pursuing a measure that was first proposed in Congress 100 years ago and was approved by Congress about 50 years later but not ratified in time to be added to the Constitution. Proponents say the amendment has taken on new significance after the Supreme Court’s ruling last year in Dobbs v. Jackson Women’s Health Organization that overturned the abortion rights long guaranteed by Roe v. Wade.

“In light of Dobbs, we’re seeing vast discrimination across the country,” Ms. Gillibrand said in an interview. “Women are being treated as second-class citizens. This is more timely than ever.”***

Now, Ms. Gillibrand and Ms. Bush are trying a different approach: They are simply ignoring the issue of the expired ratification deadline altogether and introducing a resolution that argues that the E.R.A. is already the law of the land.***

“This is an opportunity to start fresh with a legitimate legal theory that has basis in constitutional law,” Ms. Gillibrand said, noting that the reference to the deadline was in the preamble, not the text of the amendment itself. “I believe President Biden can just do this. I’m going to make the legal and political argument over the next several months that this is something he can do.”

Lawmakers Proposed Less Gendered Language in the Law

Fireman v. Firefighter: These Lawmakers Want Less Gendered Language in the Law

Some lawmakers want to change the masculine default in government documents. Reps. Summer Lee (D-Pa.), Ayanna Pressley (D-Mass.) and Robert Garcia (D-Calif.) are introducing legislation that would replace masculine generics with gender-neutral language in the U.S. legal code. News of the legislation was first exclusively shared with The 19th. 

“Gendered words in our laws have detrimental effects,” said Lee. 

Lee points to a 2015 research study that found that men were perceived as being better fits for leadership positions when a masculine job title was used in a job description as evidence of the importance of having a mandated shift away from gendered language in the U.S. legal code. A 2019 research project conducted by the World Bank found that gendered language also resulted in worse labor market participation rates for women and the reinforcement of regressive gender norms. 

At present, the U.S. legal code defaults to masculine generics except in states that have passed measures implementing a generic language change in their own state legal codes. California, Minnesota, New Mexico, Ohio, Oregon, Washington and Wisconsin are among the states that have passed such measures. 

The Equality in Our Laws Act would direct the Office of Law Revision Counsel (OLRC) to to make non-substantive, gender-neutral revisions to many portions of the legal code. Laws like the Violence Against Women Act and the statute establishing the Women-Owned Small Business Federal Contracting Program would continue to be able to use gender-specific language in an effort to create rights and protections. OLRC would also be prohibited from amending any portion of the code in which gender affects the substance, meaning or interpretation of the federal laws.

Earlier research has also found that language that is perceived to be gendered can perpetuate group-based inequities, preventing mobility for certain demographics based on people’s perceptions that certain jobs and opportunities for growth are not for them based on seeing default masculine pronouns to describe work. 

Clinical Trials Have Improved on Including Women, But Still Fail to Implement the Intent of the NIH Revitalization Act 30 Years Later

Nicole Woitowich, Clinical Trials are Better at Including Women, But There's a Way to Go

The summer of 1993 was an eventful time: Prince changed his name to a symbol, “Jurassic Park” was released and Congress passed the National Institutes of Health Revitalization Act, requiring the inclusion of women in clinical research.

Most people aren’t aware of this law, which requires that women be included in research to develop drugs, therapies and treatments. For decades, women were underrepresented in or excluded from biomedical research studies because they could become pregnant or their hormones were deemed “too complicated.” This caused large gaps in our understanding of how sex and gender inform health and disease.

The Revitalization Act has just entered its fourth decade. As a biomedical scientist who studies the intersection of sex, gender and science, I know this for certain: We still have a long way to go.

For the first 20-plus years after the legislation was passed, the idea persisted that females were simply “too complicated” to study, leaving us with an often one-sided view of biology. In response, the NIH introduced a policy in 2016 requiring scientists to consider the sex of their subjects when designing experiments and reporting and analyzing their data.

Now scientists are more likely to include both sexes in their research studies, and women account for approximately 48% of NIH-supported clinical trial participants. That’s phenomenal progress, but there’s still one major problem: Scientists routinely fail to analyze their data by sex. When this happens, we have no way of knowing if males or females respond to treatments differently or if there are fundamental differences in the way they are affected by certain diseases.

On 75th Anniversary of Women's Armed Services Integration Act Recalling Black Women's Military Leadership Since the Civil War

Wash Post, Black Women's Leadership in the Military Dates to the Civil War

This month marks 75 years since passage of the groundbreaking Women’s Armed Services Integration Act, which permitted women to serve as full members of the U.S. armed forces in every branch. It also marks a decade since the Pentagon reversed its “ground combat exclusion policy.” That had allowed women to serve on combat ships, even though it banned them from serving in direct ground combat.

These changes have been monumental. While women represented just 2 percent of the U.S. military in 1948, they currently constitute roughly 18 percent of the armed forces. Yet a 2020 report shows that fewer than 1 percent of deployed active-duty combat troops are women. A fraction of them are African American women.

While the need to recognize and celebrate these historic milestones is paramount, these commemorations often forget that Black women led armies and fought behind enemy lines during the Civil War — long before President Harry S. Truman signed the historic legislation in 1948. Their military achievements have regularly been erased, eclipsed or distorted in service of building a national narrative that appealed to White Americans. Restoring this history to our understanding of the history of women’s role in the military helps us envision a national narrative that is both closer to the truth and that works for us all.

Political Equality, Gender, and Democratic Legitimation in Dobbs

Olatunde C. Johnson and Aliza Forman Rabinovici have posted their forthcoming work on Political Equality, Gender, and Democratic Legitimation in Dobbs. The work is forthcoming in Volume 46 of the Harvard Journal of Law & Gender (2023). 

The abstract is provided here: 

This Article examines the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health, showing how the Court deploys new arguments about women’s political equality—alongside longstanding arguments about federalism and judicial minimalism—to legitimate the overruling of Roe v. Wade. In contending that abortion rights are better determined by legislatures, the Dobbs Court advances a thin conceptual account of democracy and political equality that ignores a range of anti-democratic features of the political process that shape abortion policy—such as partisan politics and gerrymandering—as well the absence of women in the legislative process. Key to the Court’s ruling is its claim that women are “not without” electoral and political power, citing data on women's equal or higher rates of voting in Mississippi. The Court’s conceptual account of political equality centers on voting while ignoring other modes of political participation as well as structural inequalities and barriers to women’s equal participation as candidates and legislators. When considering political candidacy and representation as measures of participation, a significant dimension of inequality between men and women emerges. Our investigation of the full dimensions of political inequality and the effects of anti-democratic distortions has important implications for those who wish to bring equal protection and other legal challenges to reproductive restrictions at the state level, and for ensuring inclusive and legitimate policymaking on reproductive rights and beyond. As scholars and commentators debate the proper role of the Supreme Court in democracy and argue for shifting rights determination to the legislative arena, an examination of the structure of the political process and whether legislatures are inclusive is crucial.

It concludes that: 

Given the importance of women’s representation in the political and policy-making process as a means of equally serving citizens, a keyway to ensure democratic inclusion is to increase the role of women, not just as voters but as legislators. However, currently women are underrepresented in almost every legislature in the world, with women in the United States having less representation than their counterparts in many democracies such as those in Europe.

 * * *

 

Dobbs’s contention that women participate equally as voters at the state legislative level ignores other important dimensions of political equality. In particular, women’s representation in politics as legislators also determines the extent to which women’s interests are granted substantive representation. So long as barriers exist to equal participation as representatives and women remain underrepresented in legislatures, women will be a politically disadvantaged group.

 

 

CFP 2024 AALS Annual Meeting Legislative Attacks on LGBTQ Equality

Call for Proposals for 2024 AALS Sexual Orientation and Gender Identity Issues Main Program:   "Legislative Attacks on LGBTQ Equality"

Throughout the United States, members of the LGBTQ community are increasingly threatened by legislation aimed at erasing their identity at best and denying them essential civil rights and protections at worst.  Accordingly, the Section on Sexual Orientation and Gender Identity Issues of the Association of American Law Schools is pleased to announce its main program, "Legislative Attacks on LGBTQ Equality" panel, which will be held in person in Washington D.C. in January 2024. We welcome presentations in any stage that examine and consider issues broadly related to these issues.  Topics may include bans of gender-affirming care for transgender children and adults, curriculum laws restricting coverage of LGBTQ issues in public schools, access to PrEP and other HIV prevention medications, criminalization of drag performances, etc.

We welcome submissions from law faculty, staff, and administrators at all stages of their careers. Submissions of abstracts of not more than 500 words are due on or before Monday August 7, 2023, and should be sent to Michael Higdon at [email protected]. For more information, please do not hesitate to contact Michael Higdon.

Szalai on "#MeToo’s Landmark, Yet Flawed, Impact on Dispute Resolution"

Imre S. Szalai has published #MeToo’s Landmark, Yet Flawed, Impact on Dispute Resolution: The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 in 18 NW. J. L. & Soc. Pol'y. 1 (2023). The abstract previews: 

On March 3, 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Amendment) into law. This Amendment is the most significant change in the last several decades to the Federal Arbitration Act (the FAA), the main federal law governing arbitration since 1925. This landmark Amendment is also the most important federal legislation to arise thus far from the #MeToo movement. The Amendment invalidates predispute arbitration agreements in cases involving sexual harassment or sexual assault, thereby allowing survivors to proceed with their claims in public court with more robust procedural protections. With hundreds of millions of arbitration agreements in place covering consumers and workers, the Amendment can impact access to justice and shape how disputes are resolved.

 

While the goals of the Amendment are laudable, the Amendment suffers from several problems, including poor drafting that leads to at least three different interpretations of its scope. These ambiguities particularly arise when a survivor asserts a sexual harassment claim in addition to other types of claims. Furthermore, it is uncertain whether the Amendment applies in a labor setting with a collective bargaining agreement. The Amendment may also be unconstitutional as applied in certain settings involving state courts and state tort claims. Additionally, the Amendment raises deeper questions about the regulation of arbitration and proper role of arbitration in society. This Article clarifies some of the confusion regarding the Amendment by proposing a particular interpretation of the Amendment’s scope: the Amendment should be construed to cover all claims that have a nexus with a sexual assault or sexual harassment claim. The justifications for the Amendment also suggest that future reforms of arbitration law should address discrimination and other forms of harassment. 

Williams Institute Study on "Legal Penalties for Physicians Providing Gender-Affirming Care"

The Williams Institute of UCLA has published a study on Legal Penalties for Physicians Providing Gender-Affirming Care in JAMA (May 2023). The full article is available here. It highlights the increasingly hostile legal landscape for gender-affirming care at the state level in recent years. The report focuses on care for minors, but notes that other states are considering limits on care for adults too. 

 

By 2022, approximately half of US states had implemented protective state-level health policies related to gender-affirming care coverage in private and public insurance. However, despite consensus between professional medical associations regarding gender-affirming standards of care, bans on this care, particularly for minors, have gained legislative traction within the past 5 years.* * * 118 bills have been proposed [in 2023]  across 31 states related to restricting access to gender-affirming care. By April 2023, 11 of these bills had been passed into law (in Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Mississippi, South Dakota, Tennessee, Utah, and West Virginia) and 1 administrative rule was enacted in Florida. Thus, in total, 15 states have laws and policies that ban gender-affirming care for minors. Within the stipulations of state bans, physicians who continue care face 4 major direct penalties: (1) medical license disciplinary action; (2) a private right of legal action against physicians, which can include extensions on malpractice statutes of limitations; (3) civil legal action the state can take against physicians; and (4) felony provisions that enable criminal penalties against physicians.

The publication particularly emphasizes the legal and professional risks that providers face in these states, including five states that enacted private rights of action in their laws and three that have criminalized such care. 

Many of these states’ laws deem the practice of providing gender-affirming care for minors as “unprofessional conduct.” The laws in Arizona, Arkansas, Georgia, Indiana, Iowa, Tennessee, Utah, and West Virginia hold that physicians are subject to discipline by the appropriate review board. The enacted laws in Kentucky, Mississippi, and South Dakota further state that physicians who violate these laws will have their license to practice medicine revoked by the state medical board.

 

Laws in 8 states (Arizona, Arkansas, Indiana, Iowa, Mississippi, South Dakota, Tennessee, and Utah) provide a private right of legal action, allowing citizens to bring lawsuits against physicians for providing gender-affirming care. In addition, these states extend medical malpractice statutes of limitations for claims related to providing gender-affirming care for minors. Some states allow malpractice action against a physician until the patient is 25 years old (South Dakota and Utah) and other states allow lawsuits to be filed from 10 to 30 years after the patient reaches 18 years of age (Arizona, Arkansas, Indiana, Iowa, Kentucky, Mississippi, and Tennessee).

The effects of this legal landscape are quite staggering on the medical profession, including "delegitimizing informed consent and amending the very definitions of 'the practice of medicine.'” 

Koller on "The Pipeline to Title IX"

Dionne Koller has published The Pipeline to Title IX in volume 33 of the Marquette Sports Law Review.  The abstract previews: 

Sport participation for girls and women remains, to perhaps state the obvious, contested terrain. In the fifty years since Congress enacted Title IX, the struggle to achieve sex equality in sport has taken different forms, from the initial fight to permit girls and women to participate at all to navigating the backlash that Title IX as applied to sport has “gone too far.” Whatever its form, the struggle over gender equity in sport has been, at bottom, a struggle to re-calibrate the traditional systems of power circulating in sport. Title IX dramatically altered the trajectory of this struggle through a highly successful, but as yet not fully realized, legal intervention that prohibits sex discrimination in education-based sport. This Article seeks to shed light on one aspect of the struggle, by arguing that to fully achieve equality for girls and women in sport, we must expand our lens to incorporate a more complete understanding of the systems of power that shape whether a girl becomes an athlete with the “interest” and “ability” to participate. In doing so, this article explains that youth sport is the pipeline to Title IX, and it operates as a largely privatized, professionalized system, conceptualized as a matter for the individual, not public policy. It is also an experience entwined with public health discourses that link participation in athletics with being a responsible citizen. In the U.S., youth sport is shaped by what many call our “neoliberal” political, historical moment, and in this way, it has a profound impact on Title IX’s continued ability to make meaningful change in education-based sport. 

Federal PUMP Act for Nursing Parents Goes Into Effect

The 19th, The Full Pump Act is Now in Effect. Here's What it Does for Lactating Parents

The PUMP Act, a bill designed to extend workplace protections to an additional 9 million nursing parents, goes into full effect on Friday. 

Now, workers will be able to sue their employers if they are not compliant with the law, which requires businesses to provide a private space that’s not a bathroom and adequate break time for workers to express breastmilk. The bill passed Congress with bipartisan support in December.

The PUMP Act will close loopholes and “unintentional” mistakes in a 2010 bill, the Break Time for Nursing Mothers Act, said Liz Morris, the deputy director of the Center for WorkLife Law, which helped draft the model legislation the PUMP Act is based on. Previously, protections only extended to hourly workers who qualified for overtime, but even then, it restricted any restitution workers could seek. If workers wanted to sue their employer, there was no legal mechanism to do so. Now, the majority of those covered has expanded to also include salaried workers, such as teachers and nurses, most of whom are women. 

Legal Challenge to Oklahoma's Ban on Gender-Affirming Care

Lambda Legal, the ACLU, and Jenner & Block have filed a suit challenging the constitutionality of Oklahoma's new law banning gender-affirming medical care for transgender youth. Excerpts of the Complaint reveal the key legal theories: 

13. The Health Care Ban not only gravely threatens the health and wellbeing of transgender adolescents in Oklahoma; it also is unconstitutional. The Health Care Ban violates the Equal Protection Clause of the Fourteenth Amendment because it discriminates against the Minor Plaintiffs on the basis of sex and transgender status by prohibiting any “health care provider” from “knowingly provid[ing] gender transition procedures to any child.”

 

14. The Health Care Ban also discriminates against the Parent Plaintiffs in the exercise of their fundamental right to make decisions concerning the care, custody, and control of their children by prohibiting them from seeking and following medical advice to protect the health and wellbeing of their minor children. By preventing parents from seeking the medical care for their children that medical and mental health providers have recommended, the Health Care Ban violates the right to parental autonomy guaranteed by the Due Process Clause of the Fourteenth Amendment.  

Read the full complaint here. 

Senate Republicans Block Vote on Equal Rights Amendment, One Hundred Years After Its Introduction

The Hill, Senate GOP Blocks Equal Rights Amendment

Senate Republicans on Thursday blocked a measure that would have allowed the Equal Rights Amendment (ERA) to be added to the Constitution.

Senators voted 51 to 47 to invoke cloture on a motion to proceed, falling short of the 60 votes it it needed. 

Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine) were the lone Republicans to vote with every Democrat. 

The ERA passed Congress in 1972, having been first proposed in 1923. Constitutional amendments, under U.S. law, must be ratified by three-quarters of all state legislatures, meaning 38 states. 

In 2020, Virginia became the 38th state to ratify the ERA, but it did so after the 1982 deadline to ratify the amendment had passed.

The Senate resolution would have removed the deadline so that the ERA could become the 28th Amendment. Sen. Ben Cardin (D-Md.) and Murkowski were the resolution’s lead co-sponsors.

Reuters, US Equal Rights Amendment Blocked Again, A Century After Introduction

With a 51-47 vote in favor, Senate Democrats and supporters were nine votes shy of the 60 needed for a resolution to clear the 100-member chamber's filibuster hurdle.

The resolution would have removed a 1982 deadline for state ratification that prevented the Equal Rights Amendment from going into effect. Three states -- Nevada, Illinois and Virginia -- approved it after 1982.

 

Ms., Republicans Block Senate Vote on ERA

The Senate on Thursday had its first vote on the Equal Rights Amendment (ERA) in 40 years. 

Republican opposition meant that S.J. Res. 4, which would declare the ERA ratified and valid, failed to clear the 60-vote threshold needed to bring it to the floor for debate and a vote. Polls that show 83 percent of Americans believe the ERA should be incorporated into the U.S. Constitution (including 90 percent of 18- to 24-year-olds).

S.J. Res. 4 would declare the ERA, “which prohibits discrimination on the basis of sex, was ratified by three-fourths of the states, and is therefore a valid constitutional amendment, regardless of any time limit that was in the original proposal.” (The ERA has satisfied all Article V requirements to amend the Constitution: a two-thirds vote in the House and the Senate, achieved in 1971 and 1972, and ratification by three-fourths of the states, after Virginia became the 38th and final state in January of 2020.)

“The resolution is simple,” said Senate Majority Leader Chuck Schumer (D-New York). “It removes the arbitrary deadline for state ratification of the ERA that was imposed in the 1970s. … That is why the Senate today should vote in favor of advancing this ERA resolution, so we can bring our nation one step closer to greater justice, greater equality, and a more perfect union. Let that great march towards equality take the next bold step today.”

Senate Will Vote on Equal Rights Amendment This Week, 100 Years After it was First Introduced

Wash Post, Schumer Announces Senate Will Vote on the Equal Rights Amendment This Week

The Senate will vote on the Equal Rights Amendment this week — 100 years after it was first introduced in Congress — Senate Majority Leader Charles E. Schumer said Monday.

Schumer, speaking at Hunter College in New York, argued that the Supreme Court’s decision to overturn Roe v. Wade and efforts to limit access to the abortion pill mifepristone, as well as state-level actions to roll back women’s rights, have made the ERA and its protections more critical than ever.

“In this ominous hour of American history, the Equal Rights Amendment has never been as necessary and urgent as it is today,” Schumer (D-N.Y.) said in a statement Monday.

The proposed amendment to the U.S. Constitution would guarantee equal rights under the law regardless of sex — meaning the Constitution would clearly state that women have equal rights as men. While the amendment was introduced in Congress in 1923 by leaders of the suffrage movement, it only passed in March 1972.

Ms, Ahead of the First ERA Senate Vote in 40 Years, a Nationwide Petition Launches

Senate Majority Leader Chuck Schumer (D-N.Y.) just announced the first vote on the Equal Rights Amendment in the Senate in 40 years.

“The founding document has never been interpreted to guarantee that the rights of women and the rights of men as a class are simply equal,” said Schumer on Monday at a press conference at Hunter College in New York City. “That’s why I am calling for a vote on the Equal Rights Amendment.” The senator said the vote will happen “this week,” with floor debate on Wednesday and a vote on Thursday.

For more on the history of the ERA, see Tracy Thomas & TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment (Holly McCammon & Lee Ann Banaszak, eds. Oxford Press 2018).

Will a New Lawsuit Stop the Abortion Rights Amendment in Ohio?

Jo Ingels, Will a New Lawsuit Stop the Abortion Rights Amendment in Ohio?

Groups backing an abortion rights amendment are gathering signatures to put it on the ballot this fall, as a lawsuit against the state ballot board for the abortion rights amendment as a single issue waits for a court date.

And with that suit, the state’s high court could hold the power to make a decision that could keep the amendment from going to voters this November.

Curt Hartman, the Cincinnati attorney who filed the lawsuit for two private citizens from southwest Ohio, said he’s asking the state’s highest court to require the Ballot Board to reverse its decision and revisit the issue.

“We believe that it clearly should be separated into abortion or decisions relating to deciding whether to terminate a pregnancy on one hand versus all of these other reproductive decisions,” Hartman said.

Freda Levenson is the legal director of the ACLU of Ohio, which is working with the reproductive rights amendment’s backers. She said the lawsuit lacks merit.

See also NBC News, The Next Battleground Over Abortion

Ireland Announces Referendum for Constitutional Amendment for Gender Equality

Taoiseach and Minister O’Gorman announce holding of referendum on gender equality

The Taoiseach said:

For too long, women and girls have carried a disproportionate share of caring responsibilities, been discriminated against at home and in the workplace, objectified or lived in fear of domestic or gender-based violence.

"I am pleased to announce that the government plans to hold a Referendum this November to amend our Constitution to enshrine gender equality and to remove the outmoded reference to ‘women in the home’, in line with the recommendations of the Citizens Assembly on Gender Equality.

h/t Prof. Julie Suk