“Equality of Rights Under the Law Shall Not Be Denied or Abridged By the United States or By Any State on Account of Sex.”

By: Gabriel Watson

Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock

“You’ve gotta give them hope,” said Harvey Milk. Rotten Tomatoes Classic Trailers, Milk Official Trailer #1 – Sean Penn Movie (2008) HD, YouTube, (Jan. 25, 2014, 7:34 PM), https://www.youtube.com/watch?v=hF05_CB81c0. In my early twenties, I remember looking around at the faces of the young queer men meeting Dustin Lance Black. Dustin Lance Black, IMDB, (Jan. 25, 2014, 7:34 PM), https://www.imdb.com/name/nm0085257/.  He wrote and produced the movie about Harvey Milk, California’s first openly gay elected representative. NBC News, Flashback: Meet San Francisco Supervisor Harvey Milk, YouTube, (Jan. 25, 2014, 7:38 PM) https://www.youtube.com/watch?v=O9iYasWREzE. When I think of hope overcoming adversity, I think first of Harvey Milk. Folks inspired by Milk like Cleve Jones went on to create the AIDS quilt. National AIDS Memorial, The History of the Quilt, (Jan. 25, 2014, 7:42 PM), https://www.aidsmemorial.org/quilt-history. Jones managed to create something beautiful out of very deeply ugly responses to the queer community’s pain. Vanity Fair, Flashback: Reagan Administration’s Chilling Response to the AIDS Crisis, YouTube, (Jan. 25, 2014, 7:46 PM) https://www.youtube.com/watch?v=yAzDn7tE1lU. I also thought of Milk when I listened to two plaintiffs from the Hodges case give a lecture on what marriage meant to their families. Cornell Law School, Obergefell v. Hodges, Legal Information Institute, (Jan. 25, 2014, 7:50 PM) https://www.law.cornell.edu/wex/obergefell_v._hodges. When the Court sided with Queer couples in that case, I looked around the streets during San Francisco Pride and cannot describe a happier collective event I have witnessed in my life thus far. Obergefell v. Hodges, 576 U.S. 644 (2015).

Lately, when I think of Harvey Milk I think of this part of the Hodges opinion,

“If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See, Loving v. Virginia, 388 U.S. 1, 12 (1967) and Lawrence v. Texas, 539 U.S. 558, 566–567 (2003).

This of course references the limitations of the Glucksberg test to protect those groups historically erased. Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

The legislative attacks on transgender people like the bathroom ban circulating in Utah bring me back to these cases and memories. Jamie Faux, Bill to Bar Trans People from Entering Sex-Designated Areas Passes Utah Senate, The Daily Utah Chronicle, (Jan. 25, 2024) https://dailyutahchronicle.com/2024/01/25/bill-bars-trans-people-bathrooms-aligned-gender-identity/ . I found myself asking those around me what brings them hope and was surprised when I heard, “both of us in the legal field.” I was moved to consider what I could add, given what I know now. This semester, I remembered a potential safeguard for impacted communities that might surface through the passage of the Equal Rights Amendment.

Alice Paul first authored the Equal Rights Amendment in 1920, and the Amendment still has not passed. The History of the Equal Rights Amendment (ERA), Alice Paul Institute, (Jan. 25, 2014, 8:00 PM), https://www.alicepaul.org/equal-rights-amendment-2/.  Last year, Ayanna Pressley and Cori Bush picked up the gender equality torch and launched a congressional equal rights caucus. PRESSLEY, BUSH LAUNCH FIRST-EVER CONGRESSIONAL EQUAL RIGHTS AMENDMENT CAUCUS, Congresswoman Ayanna Pressley Massachusetts 7th District, (Mar. 28,2023), https://pressley.house.gov/2023/03/28/pressley-bush-launch-first-ever-congressional-equal-rights-amendment-caucus/. Representative Bush frequently advocates from an informed intersectional perspective, like when she taught Black History on the House Floor. Congresswoman Cori Bush, Cori Bush Teaches Real Black History on the House Floor, YouTube, (Jan. 25, 2014, 8:04 PM), https://www.youtube.com/watch?v=2S2iBawmwXo. Pressley proudly joined Bush in speaking about the Equal Rights Amendment’s history on the House Floor and stated the following:

“I am proud to launch the ERA Caucus with my sister-in-service Congresswoman Bush to affirm the Equal Rights Amendment as the 28th Amendment to the Constitution, establish gender equality as a national priority, and center our most vulnerable and marginalized communities, who stand to benefit the most.” PRESSLEY, BUSH LAUNCH FIRST-EVER CONGRESSIONAL EQUAL RIGHTS AMENDMENT CAUCUS, Congresswoman Ayanna Pressley Massachusetts 7th District, (Mar. 28,2023), https://pressley.house.gov/2023/03/28/pressley-bush-launch-first-ever-congressional-equal-rights-amendment-caucus/.

The movement now feels like a beautiful ode to the first Black Congresswoman Shirley Chisholm. TheGrio Politics, Shirley Chisholm Delivers Speech on House Floor Advocating Equal Rights Amendment 51 Years Ago, YouTube, (Jan. 25, 2014, 8:08 PM), https://www.youtube.com/watch?v=8Z0uAx-sWXA.  I find hope in the Equal Rights Amendment while witnessing two women leading the modern ERA movement from an informed, coalition-based perspective. At the March 28th rally outside the U.S. Capitol Cori Bush opened:

“Equality is overdue. What does equal vision for the future look like? It looks like equal pay for equal work. It looks like the protection of abortion care. It looks like accountability and justice for the one out of three women who experience some form of sexual violence. For us equality is overdue. It is overdue. It is past time, and we need it now.” Rep. Ayanna Pressley, Reps. Ayanna Pressley & Cori Bush Launch the First-Ever Congressional Equal Rights Amendment Caucus, YouTube, (Jan. 25, 2014, 8:12 PM), https://www.youtube.com/watch?v=WQ29TZEqWwk.

The Equal Right’s Amendment asks for basic equality, and it states just that in simple and plain terms. The Editors of Encyclopedia Britannica, Equal Rights Amendment proposed United States legislation, Britannica, (Jan. 19, 2024), https://www.britannica.com/topic/Equal-Rights-Amendment.

About the Author: Gabriel Watson is a transgender male student at the University of Arkansas Little Rock William H. Bowen School of Law.

Posted in: Blog Posts, Legal Comentary

Comments are closed.