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The Language of the Equal Rights Amendment

The language of the ERA was formed in 1923, by Alice Paul, in which the first section of the amendment was made to read: “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."[5] Despite its being written in 1923, almost a century ago, the language of the ERA has remained the same while the category of “sex,” has expanded in its meaning through theoretical work such as Judith Butler’s Gender Trouble and Anne Fausto-Sterling’s “The Five Sexes: Why Male and Female Aren’t Enough” and "The Five Sexes, Revisited." Using Adrienne Rich’s idea of “writing as re-vision,” in which language is reimagined through “entering an old text in a new critical direction,” the word “sex” in the ERA can be modified in order to account for sex and gender categories that are not coherent or continuous with current norms.[6]

While sex is most often thought of as a category of identity that is biologically true to the binary of male and female, current research pushes up against this. Using evidence of intersex, Fausto-Sterling suggests that there are “many gradations running from male to female,” and that there are at least five different sexes. Even this number of sexes has the potential to “multiply beyond currently imaginable limits." Butler’s research further opposes the binary of male and female, as she argues that sex is “itself a gendered category” of which its meaning is constantly being “produced and established." Butler’s argument of sex as a gendered category posits sex as a category that is not innate or permanent. Sex is constructed by institutions, such as medicine and law, and by individuals, who have the ability to perform their sex in a way that is non-binary.

The word “sex” so often invokes the binary schema that has become the norm and will less often invoke understandings of the multiplicity of sex. Many laws that serve to protect human rights only materially protect who is considered “male” or “female,” because of the lack of connotation of possibility and sex. Thus, those who are intersex or those who resist categorization of sex and gender all together are often excluded in protection under the law. Following Fausto-Sterling's understanding of sex as a spectrum with many different variations and possibilities, the language of the ERA can be revised to ensure that people of all different sexes, including those who resist identifying their sex, are protected under the law.

Suggestions to Revise the Word “Sex” in the ERA:

Self Identifying

One phrase that can be used in the ERA is “self-identifying.” Some institutions have already made the intervention from strictly using the word “sex” by using language such as “self-identifying,” which opposes the assumption of truth and stability in the category of sex and takes into account that sex and gender can be discontinuous. An example of this is at Mills College, an all-women’s college located in Benicia, California. In order to accommodate the gender-fluid and transgender students applying, the college created a new gender policy which clarifies its meaning of gender and sex through alternative language, such as “self-identifying female” in their statement. Mills College uses language that opens their admissions policy up to multiple interpretations, and thus, multiple interpretations of identity. The college invoked a language that encompasses people of different sex and gender and ensures them an equal opportunity of application and admission. A similar kind of opening in interpretation can occur if the words "self-identifying" appeared in the ERA.

Intersex

The Intersex Society of North America defines intersex as "general term used for a variety of conditions in which a person is born with a reproductive or sexual anatomy that doesn’t seem to fit the typical definitions of female or male." Similar to Fausto-Sterling, the Intersex Society of North America understands sex as a spectrum of possibilities and not existing within a binary.

Rather than to assume that the word “sex” in the ERA includes those who are intersex, the word “intersex” can be directly stated so as to prevent the interpretation of sex as only male/female and to ensure equality for intersex people. Currently, “Intersexuality is not explicitly included in any of the federal laws against discrimination in employment, housing and public accommodation." With the addition of the word “intersex” in the ERA, protection can be legalized for intersex people where protection is not currently granted.

One example of discrimination against a person because of their intersex and insufficient protection under current law is in the case of DiMarco v. Wyoming Department of Corrections. In 2004, Miki Ann DiMarco was sentenced to fourteen months in a maximum security, solitary confinement space of Wyoming Women's Prison. Despite the fact that she presented little to no risk of violence to the prison community, the prison guards incapacitated her to this space because the prison guards were "uncertain how to treat a woman with a penis." DiMarco was not given the opportunity of a hearing to contest her placement in solitary confinement and was forced to live in what is described as "dungeon-like" conditions. However, when her case was heard by the U.S. Supreme Court, Brimmer ruled that DiMarco's living conditions were satisfactory, as she was living in a "sanitary" space and receiving "three square meals a day" and there was no "cruel and unusual punishment" that would call for protection under the 8th amendment. Brimmer also stated that there was no violation of equal protection under the law. Brimmer informed his decision by using precedent to rule, as there had not been a case treating intersexuals as a "'suspect class'" of equal protection. DiMarco was thus then evaluated in terms of the other women inmates and was seen as posing a threat. Brimmer decided that the prison was justified in segregating DiMarco. However, if there had been mention of intersexuals in the Fourteenth Amendment, DiMarco might have been able to be removed from solitary confinement, and the prison could have been made accountable for discriminating against her and placing her in a space that she didn't belong because of uncertainty and confusion surrounding her sex.

In order to protect intersex people in the ERA, or any individual whose gender or sex is non-conforming, the ERA can be modified to include that discrimination cannot occur on the basis of gender, sex, and/or intersex.