Most students of American history know there almost wasn’t a Bill of Rights; it wasn’t considered necessary. But after careful study, James Madison and others realized the new government would never be able to protect a meaningful democracy without it. In the fiery debate over the ratification of the U.S. Constitution, Madison and his supporters won the day, and Congress approved the Bill of Rights in 1789.
Though it took several years for Congress to realize the necessity of laying out a more articulated understanding of Americans’ inalienable rights, we are now grateful for that course correction. Do we need another correction now?
Maybe so. According to many, it is the inalienable rights of women that now need explicit protection. Perhaps, as with the original Bill of Rights, hardly anyone thought such a thing would be needed. But three groups argue that a Women’s Bill of Rights is now needed as an additional course correction.
The Women’s Bill of Rights, introduced last week, contains nine articles. Omitting all the “whereas” clauses, which are well worth reading, these articles affirm that:
- For purposes of state/federal law, a person’s “sex” is defined as his or her biological sex (either male or female) at birth.
- For purposes of state/federal law, a “female” is an individual whose biological reproductive system is developed to produce ova; a “male” is an individual whose biological reproductive system is developed to fertilize the ova of a female.
- For purposes of state/federal law, “woman” and “girl” refer to human females, and the terms “man” and “boy” refer to human males.
- For purposes of state/federal law, the word “mother” is defined as a parent of the female sex and ‘‘father’’ is defined as a parent of the male sex.
- When it comes to sex, “equal” does not mean “same” or “identical.”
- When it comes to sex, separate is not inherently unequal.
- There are legitimate reasons to distinguish between the sexes with respect to athletics, prisons and other detention facilities, domestic violence shelters, rape crisis centers, locker rooms, restrooms and other areas where biology, safety and/or privacy are implicated.
- Policies and laws that distinguish between the sexes are subject to intermediate constitutional scrutiny, which forbids unfair discrimination against similarly situated males and females but allows the law to distinguish between the sexes where such distinctions are substantially related to important governmental objectives.
- Any public school or school district and any federal/state/local agency, department or office that collects vital statistics for the purpose of complying with anti-discrimination laws or for the purpose of gathering accurate public health, crime, economic or other data shall identify each individual who is part of the collected data set as either male or female at birth.
Signatories include Abigail Shrier and Ayaan Hirsi Ali, among others. Intrigued, I contacted several of the ideologically diverse sponsoring organizations to understand better the rationale behind this initiative.
Lauren Adams, legal director of the Women’s Liberation Front, said a Women’s Bill of Rights is needed because “women are being targeted for erasure in policy and law.”
“We are losing single-sex spaces and resources including locker rooms, athletics and even prisons and DV shelters. And these things are happening largely away from the public eye, without the benefit of debate and transparency. ... The Women’s Bill of Rights will ensure we have a common set of definitions with which to create policies that impact women and reaffirm that long-standing laws that permit female-only spaces are in fact allowed to remain female-only.”
Much of the concern that prompted the initiative is over the definition of the word “woman.” Interestingly, while some have begun replacing the word “woman” with a collection of body parts (“cervix-havers,” “menstruators) and terms like “pregnant people,” the definition of “man” has not been similarly changed. No one speaks of “prostate-havers,” for example.
It is the question “What is a woman?” that has stumped politicians and, most recently, a candidate for the U.S. Supreme Court.
For women, the stakes of this definitional dispute are high. Jennifer Braceras, director of the Independent Women’s Law Center, told me in an email, “Over the past several years, there has been a deliberate effort to redefine what it means to be a woman — to define womanhood as a subjective state — and to conflate the word sex (which refers to the two biological categories, male and female, into which human beings fall) with gender (which is a sociological term that refers to cultural expectations or one’s personal feelings regarding male and female behavior, appearance, interests and lifestyle).
“This not only causes legal confusion, it has significant real world consequences. When ‘sex’ is misconstrued to mean ‘gender’ or ‘gender identity,’ it allows biological males to self-identify into women’s spaces. This isn’t a hypothetical threat.”
She’s right, of course. California and other states have begun moving biological males into female prisons, and there have been assaults on women as a result. And Lia Thomas is not the only athlete who has bumped women off the podium in their own sports; there is a long list now.
Statistics also become corrupted, as crimes committed by some biological males are logged as crimes committed by females, and medical data can no longer be realistically sex-disaggregated. Women are losing the ability to accurately describe their reality, as in the case of a woman in the U.K. who was raped by a transgender woman and forced by the court to use female pronouns when describing her attacker’s male genitalia.
To most effectively address these issues, Braceras says the Women’s Bill of Rights would require legislators to acknowledge that sex and gender/gender identity are distinct categories, and force them to consider the ways in which gender-identity laws might conflict with sex-based rights.
“Most importantly, it would ensure that women have the language they need to advocate for themselves in law and in policy without having to pretend that sex distinctions don’t exist,” she said. “If we don’t clarify what it means to be a woman and codify the definition of common sex-based terms, laws that prohibit sex discrimination will cease to mean anything at all. A justice system that does not recognize biological sex cannot fully defend the legal rights of women.”
Sometimes in the course of human events, it becomes necessary to plant a boundary marker, not only for the current generation, but for the sake of generations to come. James Madison saw the need in his time and gave us a lasting legacy of freedom. Perhaps the time has come for visionary women to do the same. I’m signing the Women’s Bill of Rights.
Valerie M. Hudson is a university distinguished professor at The Bush School of Government and Public Service at Texas A&M University and a Deseret News contributor. Her views are her own.