The Feminist Amendments to the US Equality Act: a new radical feminist approach to challenging gender identity ideology

The following article was sent to us by its author who is involved in the US organisation Feminists in Struggle.  She is a veteran workplace, trade union and social movement activist who identifies politically as both radical feminist and marxist.

by Ann Menasche

The mess we are in

The impact of “gender identity” on women’s rights has been a regressive and destructive one all over the world. As the category of “women” is redefined by powerful forces in our society from the material reality of biological sex to a gender role or set of sex stereotypes commonly known as “femininity” that any male can identify into and many women reject, women’s hard-won gains have begun to be eroded. The catechism of “transwomen are women” has meant that women have begun losing any claim to privacy rights including the ability to set our own boundaries through the elimination of private female-only spaces including bathrooms, communal showers, and changing rooms. These were gains of the First Wave of Feminism that allowed women to enter the public sphere for the first time in relative safety and comfort. Such rights continue to be essential because the problem of male violence – rather than disappearing – continues in epidemic proportions as the “Me Too” movement has attested.

Also put in immediate jeopardy by “gender identity” have been gains of the Second Wave of Feminism. These include female-only battered women’s shelters, rape crisis centers, affirmative action programs, women’s scholarships, women’s sports programs, etc., which are all essential remedies for ongoing sexism, male violence and sex-based inequality, remedies that are now being redefined as “bigotry” and “hate.” Anti-discrimination laws that provided protection against sex discrimination and even the Equal Rights Amendment that is at the brink of final inclusion into the Constitution, are all in jeopardy as “gender identity” subsumes sex. Even documenting sex-based disparities such as the pay gap between the sexes or sex segregation in employment becomes near impossible. Merely talking about our female bodies, discussing abortion, pregnancy, birth, breastfeeding, menstruation and menopause as female issues, as well as the meeting in female-only groups to do consciousness-raising and political organizing have been redefined as “exclusionary” and “hate,” supposedly equivalent to the horrors of racial segregation and the Jim Crow south. At the same time, individual “solutions” to women’s oppression have been sold to women who need no longer engage in collective struggle with their sisters but can simply “opt-out” of a female “identity”.

The canaries in the mine have been children, mostly young girls, who have been sold the narrative that their alienation from their bodies, their gender non-conformity, the male violence and abuse that they frequently have suffered, and/or their same sex feelings mean that they were born in the “wrong” body. They are thus encouraged to undergo dangerous medical interventions that prevent them from developing normally, cause permanent harm to their bodies and will ultimately result in sterility. For many homophobic families, such a result seems more “normal” and more preferable to a son or daughter who matures into an openly gay or lesbian adult.

To make matters worse, all these developments have come at the same time that neoliberalism and austerity have dramatically worsened the impoverishment of women, coercing more women to stay in abusive marriages or to engage in prostitution – so-called “sex work”- to survive, and forcing a growing number of women and their children into homelessness; and have also coincided with religious fundamentalism, especially that of the Christian Right in the United States, gaining in influence in society and in all levels of government. The Christian Right has already rolled back and is now poised to eliminate abortion rights and to limit access to birth control, and have in their target hairs lesbian/gay rights. With fetal heartbeat bills passing in many states and a right-wing Supreme Court in place, a nightmarish future seems within reach, one where women are jailed for every suspicious miscarriage and are in constant fear of unwanted pregnancy that could do serious harm to their education and careers prospects, and place their very economic survival in jeopardy; where “no fault” divorce is eliminated; and where lesbians and gay men are sent back to the time before Stonewall.

In essence, women are stuck between a rock and a hard place, between the institutionalization of gender identity ideology that would erase us, and right-wing religious fundamentalism that would enslave us.

Some feminists who understand the seriousness of the attack on women by gender identity ideology and the transgender “movement,” (more astro-turf than a real grass roots movement engaging in a genuine civil rights struggle) have adopted an extremely narrow focus in attempting to defeat it that has caused them to make serious strategic errors. Faced with the default and active betrayal of neo-liberal capitalist politicians in the Democratic Party as well as most of the far Left, which has shamefully turned a blind eye to the harassment, violent threats and silencing of women that has occurred in the name of “trans rights,” these feminists, many of whom are members of an organization called Women’s Liberation Front (“WoLF”), have turned to powerful far Right Christian fundamentalist organizations as “allies.” The problem with this goes beyond the “bad look” of holding a press conference where the one feminist is surrounded by people promoting an anti-abortion and anti-gay message, or putting out a joint statement with Concerned Women of America renowned for its homophobia and opposition to the Equal Rights Amendment. And it is more than the disarming of this group of feminists who may now naively think that these “conservatives,” the sworn enemies of women’s liberation, are quite reasonable, “really care” and “are not so bad” after all.

More importantly, this narrow single issue focus doesn’t work when it comes to defending sex-based rights under attack by gender identity ideology. That is because “gender identity” depends for its very existence on rigid gender roles which maintain patriarchal power relations (what we used to call “sexism”) and homophobia, in other words, the very conditions that are fostered and promoted by the Christian Right. Thus, any campaign in defense of women’s sex-based rights and opposing the ideology of “gender identity” that inevitably erodes those rights must by necessity address in the same campaign support for lesbian and gay rights and for the right of people to dress and express themselves as they like outside of gender role norms or stereotypes for their sex, free of discrimination or stigma. But to do that means the end of such “alliances.”

Enter the US Equality Act

The U.S. Equality Act (“EA”) (HR 5) that was approved by the House of Representatives and is now pending in the Senate, is a double-edged sword. It includes at long last badly-needed federal protections against discrimination for lesbians, gay men, and bisexuals. The EA also affirms the modest current protections in case law against sex stereotyping. Another positive provision of the EA is the prohibition against religious exemptions to civil rights laws, a potentially huge loophole and favorite of the Christian Right that is already being used to gut civil rights protections. Religious exemptions go far beyond whether a gay couple can purchase a cake to celebrate their wedding like everyone else. With religious exemptions, employers can deny employees birth control and fire gay employees, county clerks can refuse to marry same sex couples and landlords can refuse to rent to same sex, unmarried and/or interracial couples on religious grounds. Such exemptions undermine the idea of civil law that covers everyone, and the very concept of separation of church and state.

However, the EA also contains provisions that range from problematic to extremely harmful to women’s rights and which would have the effect of erasing women as a sex category subject to legal protections. The EA adds “gender identity” as a form of discrimination, a term that is vague and subjective, and has been used to reinforce sex stereotypes that oppress women and all gender non-conforming people (i.e., the idea that “feminine” males are not “real men,” and “masculine” females are not “real women”), eliminating distinctions based on biological sex. Just as “race blind” policies make it impossible to see and address racism, “sex blind” policies which arise from the embrace of “gender identity” likewise make it impossible to see and address sexism.

Additionally, the EA includes “gender identity” “sexual orientation,” and “sex stereotyping” under the single category of “sex discrimination,” potentially leading to lack of clarity and confusion that may have a negative impact on women’s sex-based rights. Far more seriously, the EA defines “sex” and “gender-identity” as synonymous terms. The current bill explicitly allows “gender identity” to subsume sex-based rights by prohibiting female-only spaces, thereby guaranteeing male access to such spaces based on their proclaimed “gender identity” (which means any male who identities as a woman).

The birth of Feminists in Struggle

Feminists in Struggle (FIST) was launched on International Women’s Day, March 8, 2019 as a female-only radical feminist organization based in the United States. FIST bases its unity on agreement with thirteen principles, including affirmation that women and girls are oppressed based on biological sex; opposition to the system of gender roles; support for reproductive rights and lesbian rights; support for the Equal Rights Amendment; support for the abolition of prostitution through the adoption of the “Nordic model” (which criminalizes pimps and sex buyers while decriminalizing prostituted women and girls); opposition to male violence and racism; support for free childcare and paid parental leave; and support for female-only spaces, programs and organizations.

Though there are many points of agreement with the feminists in WoLF, FIST distinguishes itself by explicitly rejecting alliances with the Christian Right as one of its principles and adapting a grassroots democratic decision-making structure. FIST also emphasizes a multi-issue approach to the fight for women’s liberation and a more integrated longer term strategy to fighting gender identity ideology and defending the sex-based rights of women and girls. FIST’s strategy emphasizes winning the battle of ideas within the whole society, including within the broad Left through creating a new wave of visible in-the-streets feminist organizing and activism. This is the same strategy that won women the vote and resulted in the Roe vs. Wade Supreme Court decision legalizing abortion in the United States. These victories were not gifts bestowed from on high but were won by mass struggle of millions of women. We believe that such a strategy is ultimately more decisive in achieving the changes that we currently seek as compared to a focus on lobbying politicians in the two corporate parties or playing one wing of the patriarchy against the other.

The Feminist Amendments to the Equality Act

A committee of FIST lawyers collaborated in a major rewrite of the Equality Act which we have called “the Feminist Amendments.” Our aim in proposing these Amendments is to support the claims of lesbian, gay, bisexual, and transgender people as well as all gender non-conforming people for freedom from discrimination without compromising the fight against oppression based on sex.

The Feminist Amendments includes the following provisions:

1. Establishes two new categories or protected classes in federal civil rights law based on sexual orientation (homosexuality, heterosexuality and bisexuality) and sex stereotyping, separate from sex.
2. “Sex” is defined as “genes, gonads, and the gametes that an individual body is configured to produce” that cannot be changed. The existence of people with differences of sexual development or “intersex” individuals is recognized and that ordinarily such individuals can still be classified as male or female.
3. “Sex discrimination” is defined as discrimination against individuals based on sex and includes discrimination based on pregnancy, childbirth, lactation and other related conditions.
4. Adds robust findings on the systemic inequalities of power and resources between men and women in all areas of life, including employment and education, the denial of rights over our bodies and reproductive capacities, and the need for female only space, programs and services to combat discrimination and to provide privacy and refuge from male violence.
5. References to “gender identity” are deleted. In its place is a broad and comprehensive definition of “sex stereotyping” which includes the expectation that individuals will manifest behaviors, dress, appearance, grooming, etc. traditionally associated with their sex and refrain from exhibiting those associated with the other sex. The protection against discrimination based on sex stereotyping would cover not only transgender people such as by protecting them from being fired from their jobs as happened to Stephens in the Harris Funeral Home case presently pending before the Supreme Court. The Feminist Amendments would also provide stronger, more comprehensive protections to gender non-conforming people generally as compared to the current version of the bill. Under the Feminist Amendments, for example, all sex-based dress and grooming codes by employers and schools would be clearly prohibited, not just those directed against transgender people. At the same time, the Feminist Amendments provide that sex stereotyping discrimination does not include merely recognizing or referring to the sex of an individual. This is essential to allow for meaningful protection against sex discrimination.
6. Provides that female-only facilities, programs and services are not prohibited under civil rights laws and neither is publication of statistics based on biological sex. The establishment of separate facilities for transgender individuals and the establishment of “gender neutral” facilities are also not prohibited “as long as such facilities do not reduce the availability of and access to single sex facilities for women and girls.”

Why Feminist Amendments?

But why try to amend the Equality Act at all? Why not just oppose the bill outright as WoLF has done?

Clearly, if radical feminists were in Congress and we were faced with an up and down vote on the Equality Act as is all of us would be forced to vote “no.” The current version of the Equality Act has such a negative impact on our sex-based rights that even with its positive provisions we would have no choice but to oppose it. However, we would first try to amend the bill so that the positive provisions were maintained and the women-erasing provisions deleted.

This is even more imperative as feminists standing outside of Congress. We need to project a vision of what kind of world feminists are fighting for. The Equality Act allows us to educate the population on how to resolve in a radical feminist manner the conflict of rights that has emerged between women and transgender identified individuals. We plan to accomplish this through seeking individual and organizational endorsements for the Feminist Amendments and holding public events to discuss our proposals. When we approach Congress, we hope to have a movement behind us.

The presently existing transgender movement is thoroughly misogynistic and reactionary. But there is a thread of legitimacy that J.K. Rowling put her finger on when she asserted the right of every person to “dress as you please, call yourself whatever you like, sleep with any consenting adult who’ll have you, live your best life in peace and security.” That’s the message that needs to be incorporated into the fight to preserve and expand the sex-based rights of women and girls. In its essence, this is the message of feminism itself.

For more information on the Feminist Amendments to the Equality Act, check out https://feministstruggle.org/faea/