ERA could lose in transgender care case

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

Most news stories describe Skrmetti as a civil rights case with conservatives supporting the law and liberals opposing it. This left-right narrative is misleading.

Superficially, the case is about whether kids can be subjected to life-altering medical procedures based on whether their feelings about being male or female are consistent with their biology.

The far more important issue is how the Court will classify transgender as a category of people under the Fourteenth Amendment.

When the Fourteenth Amendment was adopted in 1868, it guaranteed “persons” equal treatment under the law in what’s known as the “Equal Protection Clause.”

In a handful of cases over the years, the Supreme Court ruled that certain categories of “persons,” such as race and national origin, are entitled to Equal Protection rights under extremely strict legal standards that forbid nearly all forms of discrimination.

In 1971 the Court finally ruled that women, too, were persons with Equal Protection rights, but the decision said women’s Equal Protection rights would be enforced under worse legal standards compared to race and national origin. Weird, I know. How can a person have unequal equal rights? But that’s what the Court said and it’s why women fought so hard for the Equal Rights Amendment (ERA) in the 1970s and 80s. They wanted equal Equal Protection rights, and the ERA would give it to them. It states: “Equality under the law shall not be denied or abridged … on account of sex.”

The ERA fell three states short of what it needed for ratification before a time limit expired in 1982. Most women gave up. But then in 1992 the 27th Amendment was ratified, and women cried foul because it was given 203 years to ratify – while the ERA was declared dead after only ten.

Women decided to win three more states and then argue in court that the ERA’s ten-year time limit is unconstitutional in light of how much time was afforded 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 how does all this stuff about the ERA relate to Skrmetti?

In Skrmetti the Supreme Court has to decide whether trans people are “persons” with Equal Protection rights, and if so, where do they sit in the pecking order? Are they at the top with race and national origin, or are they stuck in second-class citizenship with women? Any decent lawyer for trans people would at least ask for top-tier status, but the transgender lawyer in Skrmetti asked for second-class rights, alongside women. Who does that?

That same lawyer was asked by Justice Alito whether transgender is a “mutable” (changeable) characteristic because the Court has a long history of ruling that people with “immutable” characteristics, such as race, must be granted top-tier Equal Protection rights. The lawyer replied that transgender is “immutable” – meaning it does not change. Justice Alito snorted and said transgender is obviously mutable because a person can declare themselves female today, male tomorrow, and female again after that.

Why does this matter so much to women?

Because back in the 1970s, the Supreme Court said that sex, like race, is determined at birth and immutable. This means that when the ERA is eventually added to the Constitution, women’s immutability status will elevate them to top-tier Equal Protection rights. But the trans community says sex is changeable, and they delivered this ideology to the Supreme Court in the carefully planned Skrmetti case, giving the Court all that it needs to overturn its prior rulings about sex being immutable. When sex is declared mutable in Skrmetti, women will be stuck with unequal Equal Protection rights regardless of the ERA.

So why is Skrmetti being decided now?

Because although Biden is still blocking the ERA, he is under pressure from women’s groups to put the ERA in the Constitution before he leaves office. As Chief Executive he has the power to do this and many expect that he will, but then the Skrmetti ruling will come down and the ERA will meet its final demise because the Court will announce for the first time in history that sex is mutable.

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