Beyond Sex

08.25.1411:41 AM ET

An Equal Rights Amendment for Our Time

Since the United States is hitting a "transgender tipping point," the existing Equal Rights Amendment must expand its protections to include gender--with two simple words.

The historic Emmy nomination of transgender actor Laverne Cox has spurred growing talk of a “transgender tipping point” in the United States, reflecting soaring popular support for those who do not identify with the sex they were assigned at birth. 

While Cox did not win this year—the Emmy for outstanding guest actress in a comedy series went to her Orange is the New Black co-star Uzo Aduba—her nomination highlights a fast-accelerating trend, as seen in phenomena ranging from the use of transgender models by Barneys New York, an iconic luxury department store, to President Barack Obama’s signing of an executive order that bars federal contractors from discriminating against employees on the basis of sexual orientation or gender identity.       

Now the time has come to marry this welcome development to mainstream feminism. With women’s rights under fire, there have been renewed calls for passage of an equal rights amendment. But as this momentum continues to build, I want to propose an addendum to the existing draft amendment, one that expands its protections beyond sex to include gender.

In its most recent iteration, the ERA states, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” With the addition of just two simple words—“and gender”—the ERA would instantly become a forward-thinking law with the potential to be widely applicable and effective in the 21st century. 

For all the new attention to transgender issues, the two terms—gender and sex—are still often (and incorrectly) used interchangeably. “Sex” refers to biological distinctions assigned based on hormones and sex organs. Gender, on the other hand, is related to a personal experience of self—whether innate or culturally driven—along the spectrum of femininity and masculinity. While these categories often coincide, for many they are at odds or not fully applicable. One’s actual sex and actual expression of gender are intertwined as common targets of all sorts of discrimination, violence and inequity. Just ask the butch lesbian cashier, the androgynous cocktail waitress, or the transgender dentist.

The latest push for an equal rights amendment comes on the heels of the U.S. Supreme Court’s devastating Hobby Lobby decision, which held that employers may exclude certain forms of contraception from their employee health insurance plans based on their own religious views, even if the Affordable Care Act would otherwise require inclusion. On July 24, U.S. Congresswomen Carolyn Maloney (D-Manhattan/Queens/Brooklyn) and Jackie Speier (D-San Francisco/San Mateo) stood before the steps of the U.S. Supreme Court calling for passage of the ERA (video link). Meanwhile, energy is building at the state level. In Nevada, an effort is under way to get the ERA ratified by the state legislature next year, and in Illinois, it passed the state Senate in May.

As current events make clear, transgender people stand in urgent need of exactly the protections an equal rights amendment would seek to provide. They are frequently targets of ridicule, discrimination, and violence—often from an early age and with catastrophic results. Transgender workers report unemployment at twice the rate of the general population, and they are nearly four times more likely to have a household income under $10,000, according to a 2013 report. And tellingly, transgender men earn more money living as men than they did pre-transition, when they presented publicly as women. This is true even when they continue to do exactly the same work, according to a unique 2008 study.

More broadly, throughout mainstream culture, the gender spectrum is all-too-often flattened into a binary: on one side are girls and women (like pink, nurturers, gentler); on the other are boys and men (like blue, decisive, more aggressive). Masculinity is treated as just plain better, which leads to disparagements like “You run/throw/act like a girl/woman,” along with a host of deeply ingrained habits and values related to gender.

A reimagined ERA would catapult a relic of 1970s feminism into the 21st-century by making it relevant to the ways many of us actually live. It would pull together a coalition of groups that have a vested interest in its passage – transgender feminists, labor activists, business and political leadership groups, proponents of immigrant rights, racial justice organizers, and on. Reviving this legislation would also invite into the feminist conversation to so many of those who felt shut out of the ERA debate 40 years ago. A reinvigorated ERA would also expand legal recourse, much as Title IX offered the opportunity to challenge the absence of women’s sports in educational institutions.

The ERA has always been aspirational, a touchstone for those of us who dream of a more just and equitable world. But—as Laverne Cox and so many others show us—times have changed. The ERA needs to change too. We need an amendment that protects all women, not only those who happen to have been assigned that identity at birth.


Gail Cooper is Vice President for Programs with Re: Gender, a national organization that works to end gender inequity and discrimination against girls and women, and a Ford Foundation Public Voices Fellow with the OpEd Project.