In February of this year, The Equality Act, billed as a landmark Civil Rights law for “LGBT” Americans, passed the House of Representatives. The bill seeks to amend existing civil rights laws, such the Civil Rights Act of 1964, to prevent discrimination on the basis of sexual orientation and “gender identity,” but it has been widely criticized by women’s organizations for conflating the definitions of sex, sexual orientation, and gender identity. Conflation erases the nature of sex as a discrete class of people, and prohibits single-sex spaces or services.
Conflation also makes sex mutable, which threatens women’s ability to ever achieve full constitutional equality because of the way mutability affects the levels of legal scrutiny accorded certain classes of people under the Fourteenth Amendment’s Equal Protection doctrine.
While not everything about the Equality Act is bad for women, key provisions will make women unequal to others, and will make women less visible, legally, in ways that go beyond the current feminist discourse on the Act. Perhaps most curious is the way the Act seems intent on conflating sex and gender identity for all purposes in federal law, yet it treats sex and gender identity very differently in a section that amends Title VI of the Civil Rights Act of 1964 by adding a definition of sex that includes gender identity, without also changing the definition of sex under Title IX of the Education Amendments of 1972 to include gender identity. This hypocrisy, more than anything else, reveals the Equality Act’s true disdain for women.
Equal Protection and Intermediate vs. Strict Scrutiny
In cases involving the Fourteenth Amendment’s Equal Protection doctrine, the United States Supreme Court has ruled that when a class of people has “immutable” (unchangeable) characteristics, they are entitled to the most rigorous legal protections. The Court reasoned that if people cannot change who they are, they deserve maximum legal protection against the discrimination that happens to them because of those unchangeable features.
In Frontiero v. Richardson, 411 U.S. 677 (1973), the Court ruled that sex is unchangeable because “sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth.” Because of its immutability, the Court also said that sex-based classifications and discrimination would be subjected to the strictest legal scrutiny, on par with discrimination based on race and national origin. This ruling makes sense given that sex is at least as immutable as race and national origin. Indeed, sex is less mutable than race and national origin because people can be both black and white, Irish and Jewish, etc., but a person cannot be both male and female.
Strict scrutiny is a very important legal doctrine because it means that when a court is dealing with a lawsuit alleging discrimination, the court almost always rules that the discrimination was unlawful and cannot continue. Anything less than strict scrutiny means the court is more likely to rule that the discrimination is lawful, and may continue.
"The Equality Act’s threat to make sex mutable will legitimize the Court’s pervasive refusal to treat women as fully equal persons under the Fourteenth Amendment."
Only three years after the Frontiero case was decided, the Supreme Court reversed itself in Craig v. Boren, 429 U.S. 190 (1976) and ruled that sex classifications/discrimination would no longer be subjected to the same strict scrutiny protections accorded race and national origin. Sex as a category would instead receive lesser “intermediate scrutiny” by the courts, which permits far more discrimination than strict scrutiny. The Supreme Court’s abrupt retreat from strict scrutiny for women after only three years is odd, and suggests the ruling in Frontiero may have had a malevolent purpose. Indeed, it appears that the Court’s ruling in Frontiero was designed to interfere with ratification of the Equal Rights Amendment because support for the ERA waned right after Frontiero was decided. The ERA’s timeline is instructive.
The ERA was designed to fix the Fourteenth Amendment, which excluded women from Equal Protection of the law when it was adopted in 1868. It 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.” The ERA passed Congress in 1972. To become law, the ERA needed 3/4ths of the States (38) to ratify, but Congress gave the States only seven years to ratify. Twenty-two states ratified right away in 1972; many more ratified in 1973, but after the Frontiero case was decided, support for the ERA faded. Only one more state ratified in 1973, and very few ratified thereafter. No doubt, this is because the states could politically get away with not supporting the ERA, by telling women they no longer needed the ERA because the Supreme Court had given women the equivalent of full equality by ruling in Frontiero that sex-based discrimination would now be subjected to the maximum legal protection of strict scrutiny. When the Supreme Court rescinded strict scrutiny for women only three years later, in Boren, there was little support left for the ERA.
"Why are the people who support the Equality Act so comfortable making gender identity mutable?"
Notably, the Supreme Court in Boren did not overturn or even criticize its determination in Frontiero that sex is immutable. So the aspect of Frontiero that declared sex immutable remains good law today. The Equality Act’s threat to make sex mutable will legitimize the Court’s pervasive refusal to treat women as fully equal persons under the Fourteenth Amendment.
At a minimum, the Equality Act will give the Supreme Court seemingly scientific and authoritative justification for continuing to apply only middle-tier scrutiny to sex-based classifications and discrimination. Courts can simply rule that, because one can choose to be either male or female, sex is unworthy of the strict scrutiny protections applied to race and national origin. The Court could also conclude that because women can simply declare themselves to be men, they no longer need the courts to grant them full equality under the constitution because they can establish full equality by just telling people they feel male. The Equality Act will similarly harm gay men and lesbian women because it conflates sexual orientation with sex and gender identity, thus will prevent courts from ruling that sexual orientation, like sex, is immutable.
It bears asking an obvious question here: Why are the people who support the Equality Act so comfortable making gender identity mutable? Who in their right mind wants to give courts a reason to protect them less, compared to other classes of people? Who does that?
Title VI vs. Title IX
Another way the Equality Act is both harmful to women and curiously inconsistent with its stated purpose of bringing sex and gender identity together, is a little-discussed provision that proposes to add sex (defined as “including” gender identity) to Title VI of the Civil Rights Act of 1964, while not adding gender identity to Title IX.
Title VI is a federal law that guarantees equality and prohibits discrimination based on race and national origin in connection with federally funded entities, including schools. Title IX is exactly the same as Title VI except that it applies only to the category of sex, and only to education. Title IX regulations afford much weaker legal protections for victims of sex discrimination (such as sexual assault) compared to victims of race and national origin discrimination under Title VI. For example, an offense under Title VI is established, and the offender may be punished, if the incident was “unwelcome” and based on race or national origin. By contrast, an offense under Title IX requires proof that an incident was “unwelcome” and based on sex, and severe, and pervasive, and so offensive that it interfered with the victim’s access to educational programs or activities.
The Equality Act proposes to add sex (defined to include gender identity) to Title VI, while leaving sex (defined not to include gender identity) as a discrete category segregated and subjected to different and worse legal protections under Title IX.
"Why would Equality Act advocates want victims of sex discrimination to have worse legal protections than victims of gender identity discrimination?"
This separation of sex and gender identity into two different civil rights laws that treat victims very differently is utterly irreconcilable with other aspects of the Equality Act that demand sex and gender identity be joined, conflated, and treated the same. Advocates who favor the Equality Act have not explained why they support separation of sex from gender identity in Title IX, alongside conflation of sex and gender identity in Title VI. Surely, anyone who insists sex and gender identity are the same, legally, cannot plausibly demand that sex and gender identity be subject to vastly different treatment under educational civil rights laws.
Why would Equality Act advocates want victims of sex discrimination to have worse legal protections than victims of gender identity discrimination? This stark differentiation of sex and gender identity will prevent students, teachers, administrators, etc. from labeling civil rights offenses against men who identify as women as sex-based harm, because offenses based on gender identity will fall under Title VI, but not Title IX. This separation also conflicts with the Supreme Court’s ruling in Bostock, which held that sex under Title VII, which covers employment discrimination, does include gender identity. How can sex in Title VII cover gender identity but sex in Title IX does not?
One solution would be to amend the Equality Act to include a provision that repeals Title IX. This would accomplish the ostensible goal of ensuring fully equal treatment for all students by having everyone protected under Title VI. This is exactly what women’s rights advocates wanted when they first went to Congress in the late 1960s to fight for civil rights in education. They wanted Congress to simply amend Title VI to add sex, but higher ed lobbyists fought against the idea, which led eventually to women being forced to accept the separate stand-alone option of Title IX.
After it was enacted in 1972, Title IX was propagandized as a sports equity rule, which misled women not to understand Title IX as a civil rights law. It wasn’t until Harvard came under federal investigation for violating Title IX in 2002, and Harvard Law School and Princeton came under investigation in 2010 (cases I filed), did it become widely known that Title IX applies to all forms of sex-discrimination on campus, including sexual assault.
"The Equality Act in its current form will exacerbate the destruction of Title IX and reinforce the harm caused by Betsy DeVos."
It was these cases that led to the well-known 2011 “Dear Colleague Letter.” I sent both cases to the DC headquarters of the Office for Civil Rights at the Department of Education and asked them to issue some form of “global guidance” that would apply to all schools, because the violations I had identified at Harvard and Princeton were systemic in higher education. They agreed, and issued the 2011 guidance letter which mandated that schools treat sexual assault and all forms of sex-based harm the same as harms based on race and national origin. It was an incredible victory, but the higher ed industry did not like the Dear Colleague Letter, and they immediately took steps to overturn it by lobbying for new federal laws and regulations that would give them permission to continue to subject sex-based harm to different and worse policies compared to policies that applied to harm based on race and national origin.
After nearly ten years, the destruction of Title IX was completed when new Title IX regulations issued by Secretary of Education Betsy DeVos took effect in August 2020. Much has been written about why the new regulations are harmful to women, but the most important reasons are often ignored. The new regulations removed pre-existing regulations (in place since the early 1970s) that forbade “separate” and “different” treatment of sex and sex-based harms (there were exemptions that allowed for separate sports and separate bathrooms, etc.). The new regulations no longer prohibit schools from subjecting women to different and worse treatment compared to other classes of people. Under the law today, schools have authority to subject sex and sex-based harms to much worse treatment compared to race, national origin and religion (religion was added to Title VI during the Trump administration). This is the antithesis of what Title IX was intended to do, and because many of the best-known Title IX advocacy groups are funded by higher ed, nothing is being done to fix the problem.
The Equality Act in its current form will exacerbate the destruction of Title IX and reinforce the harm caused by Betsy DeVos. But if the Equality Act were amended to repeal Title IX and add sex to Title VI, without conflating the meaning of sex with sexual orientation and gender identity, women’s educational civil rights would greatly improve, and the harm caused by Betsy DeVos would be erased. Of course, nobody will support such an amendment, which proves my point: the Equality Act is designed to hurt women, and has nothing to do with actual equality — just like gender identity has nothing to do with sex.
Wendy Murphy is an impact litigator specializing in the constitutional and civil rights of women and children. She directs the Women’s and Children’s Advocacy Project at New England Law Boston, where she has also been teaching a seminar on sexual violence and law reform for nearly twenty years. A former child abuse and sex crimes prosecutor, Wendy writes and lectures on a wide variety of topics related to violence against women and criminal justice policy and has worked as an on-air legal analyst for CBS, NBC, CNN and Fox News.
Cover photo by Ted Eytan