Transphobia is UNCONSTITUTIONAL
Also illegal, immoral, and generally appalling.
Trumpism treats transgender Americans the same way that Nazism treated Jewish Germans. The German Nazi regime began their antisemitic campaign in 1935, by establishing legal discrimination against Jewish Germans via the Nuremberg Laws. In 1938, they launched a wave of antisemitic violence on Kristallnacht. As everyone except Nazi Musk acknowledges, this gradual escalation of antisemitism eventually led to Auschwitz.
The first phase of America’s transphobic holocaust is already well under way. Trumpists are eagerly establishing legal discrimination against transgender Americans. During his first week in office, Trump signed an executive order purporting to ban transgender troops from serving in the U.S. military, and another purporting to ban gender-affirming health care for transgender Americans under the age of 19. I urgently call upon all decent, law abiding Americans to resist this discrimination before the Trumpist reich begins sending transgender Americans to concentration camps. About a week after election day 2024, Michelle and I got into a rather heated discussion about the prospect of such camps at a hotel breakfast buffet, with an old cis-gender white man claiming to be an attorney. “But that would never pass Constitutional muster!” he whined. Well, the next time I see that guy at breakfast, I am going to serve him a steaming hot pile of executive orders which do not, indeed, pass Constitutional muster, but which are nonetheless preventing young transgender Americans from getting their testosterone and serving in their nation’s armed forces.
Above: The first issue of Ms. magazine, published in 1972, the same year that the U.S. Congress sent the Equal Rights Amendment to the states for ratification.
To engage in legal discrimination against transgender people is not merely illegal. It is unconstitutional. The 28th Amendment to the United States Constitution (also known as the Equal Rights Amendment) clearly states that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” This means that every transphobic law and executive order violates the U.S. Constitution. That includes every law purporting to define gender and/or sex as binary, every law against gender-affirming health care, every law prohibiting transgender Americans from serving in the military, every law purporting to criminalize drag or cross-dressing, every law requiring student athletes to submit to genital inspections, every law prohibiting teachers from using a student’s preferred name and pronouns, and of course, every law requiring transgender people to use or not use a particular bathroom. Every single one of these laws violates the United States Constitution and must therefore be struck down immediately.
Transphobes and misogynists will say that the 28th Amendment is not actually part of the Constitution. That is a lie, like everything else they say. One of the favorite strategies of the Trumpists is to pretend that there is an ongoing debate about something when there is not. That is very much the case here. On one side of the “debate” about whether or not the Equal Rights Amendment is part of the Constitution is the American Bar Association and every reputable Constitutional law scholar you have ever heard of, including Kathleen M. Sullivan, who is Professor of Law and former Dean at Stanford Law School, and Laurence Tribe, who is Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard University. On the other side is a few guys with Juris Doctorates from Hollywood Upstairs Law School, competing to see who can make the most bad faith arguments before getting disbarred.
I explain below why the Equal Rights Amendment is absolutely part of our Constitution. But first, I want to point out that these “debates” really miss the larger point. The Constitution means whatever We the People of the United States say it means. Our Constitution is harder to amend than any other Constitution in the entire world. It takes 67% of each house of Congress and 75% of state legislatures to amend it. Well, a 2020 poll by Pew Research Center found that 78% of Americans believe the ERA should be part of the Constitution. The percentage of Americans who want equality of sex and gender enshrined in our Constitution is greater than the percentages of Congresspeople, Senators, and state legislatures who must support a Constitutional amendment in order for that amendment to be ratified. In other words, popular support for the ERA exceeds the very high bars for amendment that the cis-gender white men who wrote the Constitution established.
In 1972, the U.S. Congress passed House Joint Resolution 208, proposing that the Equal Rights Amendment should be added to the Constitution. House Joint Resolution 208 was approved by overwhelming bipartisan majorities in both houses of Congress. The vote was 354-24 (94%) in the House of Representatives and 84-8 (91%) in the Senate. This greatly exceeded the two-thirds majority required by Article V of the Constitution. Strange as it seems today, gender equality was non-controversial in the 1970s. The word “transgender” was not part of American English in 1972. However, there were a few Americans, including the famous Christine Jorgensen, who had received sex reassignment surgeries. The 1972 Congress certainly knew that a Constitutional amendment prohibiting sex-based discrimination would apply to trans people like Christine Jorgensen. Take a moment to appreciate the fact that in 1972, over 90% of the U.S. Congress voted in favor of a Constitutional amendment which would protect trans people from legal discrimination.
The ERA then went to the states for ratification. By 1977, thirty-five states had ratified it. Unfortunately, that was three short of the thirty-eight (three-fourths of fifty) required. Then misogyny began to creep back into the public discourse, as it all too often does. Six states which had already ratified the ERA passed laws purporting to rescind their ratification. But guess what? When it comes to amending the Constitution, there are no take backs! And that’s a relief, because if states could rescind their ratification of Constitutional amendments, the states of the American Southeast (though not, as I always remind you, those states that lie under the Western Sky) would immediately un-ratify the 14th Amendment, and then none of us would be U.S. citizens any more. The Constitution makes no provision for states to rescind ratification of amendments. As James Madison once said to Alexander Hamilton, ratification is “in toto, and for ever.”
Misogynists, transphobes, and other enemies of equality claim that the last three states to ratify—Nevada, Illinois, and Virginia—did so too late, after the time limit for ratification had supposedly expired, and so these ratifications supposedly don’t count. This is false. The Constitution includes no provision that limits the time for ratification of Constitutional amendments by the states. Congress did include a time limit in the 1972 Joint Resolution by which they transmitted the proposed ERA to the states. However, this was a purely advisory resolution which had no legal force. In fact, Congress does not actually have the authority to impose a time limit for ratification on the states, for that is a power that properly belongs to the several states themselves. Congress could have included a time limit for ratification in the text of the proposed amendment itself, as they did for amendments 18, 20, 21, and 22. However, they included no such time limit in the text of the ERA.
Article V says that a proposed amendment “shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States.” So the Equal Rights Amendment became part of our Constitution on January 27, 2020, when Virginia became the 38th state to ratify it. Unsurprisingly, the then-Pussygrabber-in-Chief failed to acknowledge ratification of the ERA. But happily, under Article V, the Executive Branch has absolutely no role to play in the Constitutional amendment process. As recently as December 2024, the Archivist of the United States, Dr. Colleen Shogan, declined to announce that the Equal Rights Amendment has become the 28th Amendment to the United States Constitution. So President Joe Biden did it for her. On January 17, 2025, President Biden declared that “The Equal Rights Amendment is the law of the land — now! It's the 28th Amendment to the Constitution — now.” If the President of the United States has to spend the last business day of his administration doing the National Archivist’s purely symbolic job for her because she can’t be bothered doing it, well, that’s pretty embarrassing—for her. It does nothing to change the fact that the Equal Rights Amendment is now part of our Constitution.
Misogynists and transphobes will undoubtedly continue to spew forth legalistic bullshit claiming that the ERA was not properly ratified. Don’t let them get away with it. Make them stand in front of a microphone and say that they believe women and transgender people are second-class citizens. Then ask them why they believe that. They won’t have an answer, because there is no reason beyond hatred and fear of otherness. 78% of Americans believe that sex-based discrimination should be unconstitutional. 100% of reputable Constitutional law scholars believe that such discrimination is, in fact, unconstitutional. Women and transgender people have the same rights as men and cis-gender people. To say otherwise is profoundly un-American.
Works Cited
American Bar Association Commission on Women in the Profession. “Report.” August 2024. https://www.americanbar.org/content/dam/aba/directories/policy/annual-2024/601-annual-2024.pdf.
Tribe, Laurence H. and Kathleen M. Sullivan. “The Equal Rights Amendment at Long Last.” The Contrarian. January 17, 2025. https://substack.com/home/post/p-155030820