ERA Attorney Wendy Murphy Blows Whistle on New York State’s Equality Act, Amendment 1

A few years ago, the Equality Act was pending in the U.S. Congress that would have harmed women’s and lesbian/gay rights by allowing gender identity to override sex based protections for women, including for lesbians. https://www.congress.gov/bill/117th-congress/house-bill/5  Feminists in Struggle called for amending the Equality Act by adopting the Feminist Amendments to the Equality Act that would make sex protections separate and distinct.   Now, a New York initiative is trying to do the same thing as the Equality Act threatening the rights of women in New York in the name of equal rights for marginalized groups.  New York’s Equality Act to be voted on November 5th, would, if approved, similarly erode women’s rights by conflating gender identity with sex.  https://ballotpedia.org/New_York_Proposal_1,_Equal_Protection_of_Law_Amendment_(2024) Under New York’s Proposal 1, sex becomes no longer a distinct protected class under law with women entitled to sex based protections.  Rather, some men , those who claim to be women, must be included.

To understand this issue better and why it is such a threat to women’s rights, we highly recommend the Thursday, October 24, edition of Joy of Resistance: Multicultural Feminist Radio at WBAI that featured esteemed women’s rights attorney Wendy Murphy being interviewed by host/producer Fran Luck, in a passionate and legally informative takedown of the New York State Equality Act (on the November 5 ballot) and how it pushes backward our chances of obtaining equal rights under the law.

This omnibus anti-discrimination legislation, which, if passed, will be permanently added to the New York State Constitution, claims to give protection to people in every possible vulnerable category, such as age, race, disability, religion, etc. However, when it comes to the category of sex, we see the following language: “or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”

As Wendy points out, including “gender identity” as a sub-category of “sex” waters down the meaning of “sex” and the idea of women being a separate “sex class” worthy of our own piece of legislation — i.e., an Equal Rights Amendment, with a requirement of “strict scrutiny” (the highest level of legal commitment to monitor and enforce discrimination laws). “Gender Identity” also implicitly asserts that sex is “mutable” (change-able) and “strict scrutiny” is only granted to groups of people whose status is immutable: they cannot change their status because they are born into a particular group and will be part of it for their entire lives. (The category of race is granted strict scrutiny for this reason.) So, although “sex” is included in this omnibus “equal rights” legislation, its use for women is undercut by the inclusion of “gender identity” within the category of “sex”.

Wendy Murphy makes many other important points about how the law works and doesn’t work in regard to women in compelling and accessible (to non-lawyers) language and the strongest clearest LEGAL argument for immediately adding the 101-year-old already fully ratified Equal Rights Amendment to the U.S. Constitution that you will hear anywhere. The program contains a feminist news segment and listener call-ins at the end — including one by a FIST member! You can hear it at https://wbai.org/archive/program/episode/?id=53797.

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AFTER THE ELECTION: THE STRUGGLE CONTINUES

By Ann E. Menasche

This is the opinion of the author alone and does not represent the official views of Feminists in Struggle (FIST).  FIST is a non-partisan organization and takes no position on the Presidential elections.  

It should go without saying that whoever wins the 2024 Presidential election, women will not be free, and we feminists will have a long struggle ahead of us. I would go further and predict that the nature and extent of the struggle that we will need to engage in after November 3rd will not substantially change regardless of which of the two leading candidates, Harris or Trump, wins.

The U.S. has one of the least democratic systems among the so-called democracies.  Our big money-soaked winner-take-all corporate duopoly with its undemocratic Senate and electoral college (both violate one person one vote principles) and its denial of ballot access and media attention to third parties, has never represented ordinary working people.  It certainly has never championed the rights of women.

Every victory women have won, without exception, was wrested out of the hands of the ruling elite, through our own determined mass struggle. That’s true whether it was Alice Paul leading the suffragists against Democratic President Woodrow Wilson, or the radical feminists of the Second Wave who won abortion rights starting at a time when every state and both parties made abortion a crime.

Some feminists, me included, have rejected lesser evil politics for a long time. I have seen the evils get greater and greater each election cycle while a genuine independent Left, along with an independent feminist movement become weaker and weaker to the point of disappearing entirely.  As a strategy for change, even for winning modest reforms, it has proven time and again its utter bankruptcy.  Besides, some evils are just too darn evil to be deemed “lesser.”  Even when the face of one of these evils is a woman of color who could possibly become our first woman President.

So, horrified at the unfolding genocide in Gaza carried out with U.S. bombs and taking the lives of tens of thousands of women and children with the support of both Harris and Trump, and cognizant of the imminent existential threats of nuclear war (90 seconds to midnight according to the Union of Atomic Scientists) and climate catastrophe (devastating storms and rising temperatures), I voted for the only viable peace candidate, Green Party Presidential candidate Jill Stein. It was important to me to register my dissent at the ballot box to the unfathomable violence being perpetrated in our name and to work toward creating a real alternative to the twin parties of war, empire and patriarchy, an urgent task that we cannot afford to put off any longer.

I voted for Stein despite the major flaw of the Green Party and her campaign in fully embracing gender identity ideology, following blindly in the footsteps of the Democratic Party. Indeed, there is no daylight between the positions of the two parties on this issue, in contrast to most of Stein’s platform in which the differences are stark and Stein’s planks far stronger.  There can be no substantive social change that leaves behind the sex based rights of half of humanity born female.

At the same time, when it comes to women’s rights as a whole,  the Democratic Party leadership has failed women miserably.   Though they all talk a good game during election time, as Harris is doing during her campaign, the Democratic Party has missed every opportunity to secure abortion rights nationally, both before and after Dobbs. Most recently, the Biden/Harris administration did nothing to even attempt to fix the Supreme Court or open up abortion clinics on federal land.  The administration has also done nothing and actually worked against the Equal Rights Amendment arguing in court against it, and refusing to instruct the archivist to register the ERA into the Constitution.  In terms of actions, not rhetoric regarding the ERA, the current administration is indistinguishable from the Trump administration before it.  Despite Stein’s faults, she has made the pledge to register the ERA into the Constitution. The ERA is a central issue because with sex in the Constitution, women are on far stronger legal ground to fight for everything else including abortion rights. (Of course, we must continue to fight for sex to mean sex, and not be conflated with, “inclusive of”, or overridden by gender identity, so the potentially powerful impact of the ERA on the status of women will not be undermined.)

Should Trump prevail on election day, there will be those inclined to blame Stein for this victory.  But it doesn’t work that way.  If I had no option to vote for Stein or another anti-war, anti-genocide candidate for President, I would leave that ballot line blank.  (Or else write-in Alice Paul.) That’s the case for the vast majority of Stein’s voters including the many Arab and Muslim voters who are  voting third party for the first time.  With their families being killed in Gaza or Lebanon, they are refusing to vote for perpetrators of genocide, no matter what.  Can you blame them? Harris could have taken a stand against arming Israel at least during this ongoing massacre of civilians in Gaza and won back much of that support. She didn’t.  Instead, she has emphasized her uncritical loyalty to Israel, and to United States imperial dominance and its forever wars.   Reinforcing her pro-war message, she has travelled around the country with neo- con war criminals including Dick Cheney.

I respect that many feminists have made or are making different choices than I have this election. Some feminists have argued that Harris is far better than Trump on reproductive rights, and other issues of concern to women and that she is at least not Trump, who some label a “fascist” and whose circle of supporters are promoting Project 2025, a truly frightening agenda, that if implemented could set women back a century.  Other feminists, many life-long Democrats and liberals, argue that Trump is the lesser evil because of his opposition to gender identity and the transitioning of children. They believe that Trump will save women’s sports and spaces, get convicted rapists with women gender identities out of women’s prisons, and stop this horrendous medical experimentation on children’s healthy bodies (mostly same sex attracted girls) that is tearing apart so many families.

In my view, it is a mistake to believe any one of the promises from Harris or Trump that would help women.  None of our issues are likely to disappear regardless of who is elected. Women’s rights will be defended and secured, as always, by the relationship of forces on the ground, by the women’s liberation movement that we build that addresses the full panoply of women’s rights.  This is the case whether we are talking about winning back abortion rights, fighting against male violence in all its myriad forms,  getting the ERA at long last into the Constitution, or putting a stop to the sex-denying gender ideologues and the transition industry that have done such harm to women and children.

My hope is that we feminists put aside these differences post-election without recriminations and join hands together.  We have a lot of work ahead of us.