OPINION: Jacques: Erasing 'sex' differences from law bad for women

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Mar. 25—You have to hand it to Democrats. They are deft at naming legislation.

Many of the measures before Congress sound perfectly reasonable and fair, yet when you dig into them, the dangers quickly emerge.

The PRO Act, Paycheck Fairness Act, Equality Act and Equal Rights Amendment are just a few.

While these names indicate an expansion of rights and opportunities, in many cases they would do the opposite. And women stand to be harmed the most, which is ironic as some of the policies purport to help women.

We are nearing the end of Women's History Month, so this seems a good time to look at these legislative pushes and their potential implications.

In the last 50 years, women's rights in the U.S. have come a long way, and women rightly have all the protections of men in the Constitution. Trying to push these rights even further could backfire by undermining women's privacy and job flexibility, among other negative consequences. There's a big difference between ensuring equal rights and erasing gender altogether.

President Joe Biden has made promoting gender issues a priority of his presidency. To mark International Women's Day March 8, he signed an order creating the "White House Gender Policy Council" to fight discrimination and push for gender equity, including transgender rights.

One of Biden's first actions as president was to sign an order that instructs schools to allow students to choose sports teams, locker rooms and bathrooms that coincide with their chosen gender. Yet states that previously had laws like this on the books highlight the tensions they create. Biological males have a clear advantage in women's sports, and this had led some female high school athletes to sue when they felt their fair opportunity to compete was being denied.

Biden pointed to last year's Bostock Supreme Court decision that found employers can't discriminate against employees based on their sexual orientation or gender identity, although the justices didn't apply their ruling to Title IX, which bans sex discrimination in schools.

The president's edict gives us a look at what the Equality Act — "an act to prohibit discrimination on the basis of sex, gender identity, and sexual orientation" — would do if made law.

"The name is designed to silence opposition," says Inez Stepman, a senior policy analyst at the Independent Women's Forum. She says when Americans are informed about what the bill would actually do, their support decreases dramatically.

The act, which recently passed the U.S. House, would expand the Civil Rights Act to include these new protections, but it is sweeping in scope and more alarmingly seeks to gut federal religious liberty protections. So, in effect, discrimination would be sanctioned against anyone with conscience objections.

Since the law would apply to "public accommodations" and retail shops such as florists or bakers, these business owners would no longer have the ability to decline baking a cake or creating an arrangement for a wedding they didn't support without the threat of legal action.

Stepman says the Equality Act could erode women's rights.

"In reality, erasing women as a legal category has a negative impact on women and girls," she says.

Doing so could jeopardize nutrition programs like WIC that benefit women and children as well as education grants to encourage women to pursue careers in science and math.

And there are risks for women who are used to privacy in bathrooms, locker rooms and other single-sex spaces. Even more critical are places where men and women are separated for safety reasons, including prisons and shelters. These separate facilities could easily run afoul of the law.

Women could also face the draft, and one-sex sports teams would be suspect.

More concerning is the Equal Rights Amendment, which initially passed Congress in 1972, as many of these provisions would be cemented into the Constitution. Luckily, the final states to ratify the amendment in recent years missed the deadline by decades.

And although Congress has tried to retroactively reset that time frame, the courts aren't likely to uphold that. Don't expect the measure to go away, though.

"I don't think it's a good thing to ignore biological differences of sex," says Stepman. "We don't think about what would happen if we treat men and women identically in every circumstance."


Twitter: @Ingrid_Jacques

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