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Constitutional Amendment to Protect the Transgendered? By: Deborah Weiss
FrontPageMagazine.com | Wednesday, November 28, 2007


Last week, the Federalist Society Convention hosted a presentation titled “Amending State and Federal Constitutions to Prohibit Sex Discrimination.”  According to the panelists, there is a movement afoot to revive the Equal Rights Amendment (ERA) which was fought vigorously, but killed in the 1970’s.   Among those currently promoting the concept are Senator Ted Kennedy (D-MA) and Congresswoman Carolyn Maloney (D-NY) who have offered Congressional resolutions reintroducing the idea.  Left wing organizations, Speaker of the House Nancy Pelosi, and the United Nations, also favor the ERA. This year, seven states have reintroduced resolutions to ratify the amendment.

Mrs. Phyllis Schlafly almost single-handedly derailed the ERA in the 1970’s.  On the dais at the convention, she forcefully and convincingly articulated why the ERA is a farce.  First, the ERA is not needed to provide equal rights to women.  The
U.S. already has gender-neutral employment laws, the Equal Protection Clause in the 14th Amendment, and the Civil Rights Act of 1964, which accomplish the goal of gender equality.  The ERA offers absolutely no benefit to women.  On the contrary, it would deprive women of their current benefits and protections.  Supreme Court Justice Ruth Bader Ginsburg, formerly an ACLU attorney, advocated the ERA as a means to abolish the presumption that men should support their wives.  It would obliterate the distinction between men and women, require strict scrutiny of legal statutes, and disallow sex to be taken into account when appropriate.  It would result in:  the elimination of social security provided to stay at home moms and widows, the inclusion of 18 year old girls in the event of a military draft, and possibly mandatory funding of abortion. 

Mrs. Schlafly asserted that the constitution refers to “we the people” and “citizens”.  The word “men” is not in the constitution, and therefore an amendment to include women is unnecessary.  Furthermore, it is a lie that the proposed amendments will add the word “women”.  The texts read: “equality under the law shall not be denied or abridged on account of sex.”  Neither “sex” nor “equality” is defined, leaving wiggle room for interpretation by activist judges.  Such lack of specificity could have dire results.  The amendment would have implications for property, divorce, and prison regulations.  The courts could require the integration of single sex schools, and the merging of the Boy Scouts and Girl Scouts.  They could insist that school sports become unisex, and bathrooms as well.  The amendment could even be interpreted to require recognition of same-sex marriage.  The list of unintended consequences is endless. 

Mrs. Schlafly inquired if the amendment pertains to “the sex you are or the sex you do”.  We should further ask if it pertains to the sex you’ll become in the future or the sex you think you are.  Despite the audience’s laughter, the question has serious implications.

Even if the amendment were modified to read “women” rather than “sex”, it is unclear how “women” would be interpreted.  Genetically male transsexuals who undergo surgery to become female, still retain male chromosomes.  Though male at birth, they elect to have “sex-reassignment surgery” to “correct” mind-body dissonance.  Hermaphrodites who do not get corrective surgery (“intersexuals”), also do not fall neatly into one category of sex.  Additionally, “she-males” who obtain female hormones and breasts, but choose not to complete surgery, forever remain pre-op transsexuals.  The definition of “women” could include the gambit of sexually confused individuals who present themselves as women.

The “transgender movement” refuses to be limited to two genders.  There is a “gender continuum” they explain.  Male and female are two extremes on that continuum.  Other genders include intergender, agender, ambigender, gender atypical or “other”.  (This is unrelated to one’s sexual orientation, which runs the gamut from straight, to gay, bisexual, asexual, and pansexual.)  Some make the distinction between gender and sex.  They explain that sex is determined biologically and is male or female.  Gender is a social construction composed of psychological, social, and cultural aspects of maleness and femaleness.  It includes clothing, personal interests, and personality traits, which are characterized as masculine or feminine.  Gender appears to be an obvious fact, but is really a societal invention.  To social constructionists, everything is subjective.  There is no such thing as reality, only social convention.  More radical sociologists contend that sex, in addition to gender, “belongs to the world of meaning” rather than physical reality.

The extreme left claims that children as young as 15 months old can exhibit signs of being transgendered.  Children are transgender when “what’s between their legs does not match what’s between their ears” and it’s not a passing phase.  Transgender “experts” advise parents of transgender children to go along with their child’s pronouncement that they are a member of the opposite sex.  Supposedly, this will help the child avoid depression, self-hate, drug use, negative body image, and all kinds of harm the child might develop if encouraged to acknowledge the truth of his or her physical sex.

The DSM IV is the authoritive source of diagnoses for professionals in the psychological and psychiatric fields.  It lists alternative gender identities as mental disorders.  The transgender community disputes this characterization, insisting that it is only a disorder if the person who has it experiences feelings about it that cause him/her distress or disability.  Instead, they promote the view that these disorders constitute “gender giftedness.”  Anyone who thinks otherwise is likely to be slapped with the newest label:  “transphobic”.

Most federal and state anti-discrimination laws limit protections to men and women.  There are no legal protections against discrimination for people who consider themselves to be both sexes, neither sex, or “other”.  Even the Employment Non-discrimination Act (ENDA), recently promoted by liberals in Congress, was stripped of legal protections to the transgender community.  

If amendments are made to the federal or state constitutions prohibiting discrimination “on account of sex”, then who will be protected depends on how the courts define “sex.”  Will it extend to the transvestites in women’s bathrooms, male employees who want to wear dresses to work, transsexuals in military barracks, or male psychotics with delusions of being female?  If gender is socially constructed, then the push from the left is to reconstruct it.  They endorse the notion of “gender self-identification”, which dictates that you are what you think you are, even if your biology indicates otherwise. 

Will your sex be defined by your physical characteristics at birth, by society, or by each individual?

You might think that your sex was determined by God, nature or science.  But leftists promoting the ambiguous language in the ERA are all too happy to leave that determination up to the courts.   


Deborah Weiss, Esq. lobbies for Vigilance, Inc. and is a freelance writer.


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