Opinion: Does America Really Value Equality? What Women and Transgender People Might Say

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The Supreme Court ruled in the Citizens United case that corporations merited certain rights of personhood. The decision in this case became crystallized in the notorious phrase, “Corporations are people.”

This year’s events insistently raise the question of which Americans enjoy the basic rights of personhood in America.

How are we doing when it comes to achieving our nation’s putative hallmark ideal of equality?

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A reading of U.S. history we often hear tells the story of a nation that has thus far imperfectly realized its founding premise that “all men are created equal” but that has nonetheless been on an ongoing quest to achieve a fully egalitarian culture for all people, even and perhaps especially those that the initial formulation did not include in its reference to “all men.”

The cherished founding principle that “all men are created equal” animating the American experiment has obviously been vexed by realities of our national life and history, which stand undeniably in stark contradiction to that principle.  The racism informing the practices of slavery and genocide present in U.S. history since the nation’s inception highlight the unrealized status of this value of equality.

But “we” the people still believe in it, right? We’re still just trying to figure it out, right?

It’s just that it is so hard to figure out, right?

While we could ask many constituencies, particularly people of color, how they are faring when it comes to equal rights, let’s take a quick look at women and transgender people might assess the national terrain in this regard.

In last November’s election, Democrats in Virginia flipped the state Senate and House of Delegates to gain full control of the state government for the first time since 1993. These election results have inspired hope that the state government will now become the 38th state to ratify the Equal Rights Amendment (ERA), which passed the U.S. Senate and House of Representatives in 1972 and was quickly ratified by 22 states. Any constitutional amendment requires ratification by 38 states. The crawl toward reaching this number has been a slow one, with Nevada becoming the 36th state to ratify in 2017, followed shortly thereafter by Illinois.  Last February, efforts in Virginia fell short by one vote in the House of Delegates. The votes now seem to be there.

But let’s also step back and get a little perspective.  Here we are in 2019 still asking whether or not women—some half of our population—should enjoy equal rights or continue to be relegated to the status of second-class citizen.

Isn’t it strange, for a nation pretending to value equality, that we still ask this question, deferring equal rights to women?

Here’s the statement in the ERA this nation trembles to validate:

“Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex.”

I guess it’s just a really hard one to figure out, to wrap our national heads around. Of course we value equality; we’re just figuring out how to get there.

Or, do we need to come clean as a nation that we simply don’t value equality as a collective culture and that we don’t aspire to an egalitarian society?

The question as to why this nation can’t and won’t ratify the ERA is even more puzzling when we recall the language of the 14th amendment, which includes the clause:

“nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The only way women don’t already have what the ERA is asking for, according to this language, has to be because they aren’t considered people.

So, refusal to ratify the ERA is a more than tacit admission that the nation is not prepared to grant personhood to women, to acknowledge that women, like corporations, just might be people.

Antonin Scalia, former Supreme Court Justice, clearly didn’t see women as people, asserting the Constitution did not afford women equal rights.

Last October, our current Supreme Court heard arguments about the major civil rights question before it regarding whether or not gay and transgender people are protected under federal legislation that outlaws employment discrimination “on the basis of sex.” While the decision is forthcoming, the nature of the debates and the questions raised from the bench when attorneys for both sides presented arguments do not reflect well on this nation’s supposed commitment to civil rights.

Many questions pertained to bathroom use. How will  public bathroom use work when it comes to transgender people?

A more serious discussion would have actually been about civil rights. Do all people deserve civil rights or do some deserve to be second class citizens?

Let’s acknowledge our principle and constitutional law of the 14th amendment, then we can stop and figure out bathrooms.  What if African Americans had been denied civil rights (in law) because we couldn’t imagine how we would handle the drinking fountain issue?

The New York Times has reported on the extensive rollbacks in protections Trump has enacted for transgender people that had in place in the military, the correctional system, the education system, and more, highlighting the reality that transgender people have been relegated to non-personhood status, to second-class citizens.

Consider U.S. Attorney General William Barr’s comments in a recent speech delivered at the Notre Dame University Law School. He found it outrageous that “New Jersey recently passed a law requiring public schools to adopt an LGBT curriculum that many feel is inconsistent with traditional Christian teaching,” lamenting similar laws in other states.

Barr reveals a belief that LGBTQ people are immoral, undeserving of equal rights.

If we are going to have a discussion about equality in America, we need to admit that evidence suggests we aren’t behaving as if we value equality and aspire to it.

We can’t fall back on the narrative that we aspire to equality but haven’t figured it out.

It’s not hard, if we actually care.