A Libertarian “Women’s Bill of Rights” Will Not Advance Women's Interests

The "Women's Bill of Rights" defines biological sex, but offers no meaningful protection against sex discrimination.

Carrie Lukas (IWV) and Mahri Irvine (WoLF)

Last May the Women’s Bill of Rights (WBR) was introduced into both the House and Senate as a resolution by a number of Republican legislators. The proposal is a product of Women’s Liberation Front (WoLF), a self-described “unapologetically radical feminist” organization, and Independent Women’s Voice (IWV), the issue advocacy arm of Independent Women’s Forum (IWF)¹. The bill is endorsed by a number of anti-feminist groups including Concerned Women for America, Heritage, Family Policy Alliance, Eagle Forum, and Conservative Political Action Committee (CPAC), as well as the US chapter of the self-avowed radical feminist organization Women’s Declaration International (WDI USA).

The stated intent of the bill is to remedy the problem of gender identity increasingly given precedence over biological sex in law and public policy. Thus, the bill affirms the existence of biological differences between the sexes, that the term “sex” in federal law is defined as biological sex, that “the terms ‘woman’ and ‘girl’ refer to human females,” and that “‘mother’ means a parent of the female sex.” Further, the bill asserts that distinctions between the sexes are important when it comes to sports, prisons, shelters, and restrooms. So far, so good.

The bill is not written, however, in a way that would address historic and continuing structural inequality between the sexes, nor to affirm women’s equal standing with men in the Constitution, as the Equal Rights Amendment (ERA) is intended to do. Rather, the bill appears to be a redirect away from the ERA and a mechanism for targeting the Democrats on transgender issues during an election year. Further, it may even function to the detriment of women. The bill’s sponsors speak of “protecting” women and their “unique” role in reproduction - recalling past justifications for discrimination against women. As a feminist lawyer and friend explained, a bill that “protects” us as “the weaker sex,” can: 

turn on a dime to become oppressive. It can justify forcing women to wear hijab “for our protection”... keeping us out of the public sphere, confining us to our proper roles…

We don't need “sex” to be correctly defined because of women's weakness! We need sex to be recognized in law, as needed, to correct male oppression of women.

Libertarian-orientated Women’s Independent Forum has long opposed the Equal Rights Amendment - as they have many other feminist-supported pieces of legislation. IWF was originally formed in 1991 to support Clarence Thomas against allegations of sexual harassment by Anita Hill during the contentious hearing on his Supreme Court nomination. One of their ideological founders, Christina Hoff Sommers, developed their concept of “equity feminism,” rooted in liberal notions of equality, as distinct from what she terms “gender feminism,” the “myth” that women are oppressed by men and suffer systemic discrimination. “Equity feminism” calls for equal treatment of women and men without regard to social context and denies the existence of structural inequality.

IWF has opposed the Violence Against Women Act, attacked access to paid Family and Medical Leave, and denies disparities in wages between the sexes, arguing that any differences are due to women’s choices. They specialize in using feminist arguments to advocate right wing positions. For example, IWF has argued that gun control is “sexist” because guns are “the great equalizer,” and that an assault weapon “in the hands of a young woman defending her babies in her home becomes a defense weapon,” that paid family leave harms women, and that regulating e-cigarettes would discriminate against women.

Not coincidentally, IWF receives funding from the tobacco industry, including the “vaping giant Juul.” IWF reportedly has also received funding from the Adolph Coors Foundation (original funder of Heritage), Exxon Mobil, Koch Charitable Foundation, and far right Wisconsin billionaire Diane Hendricks, to name a few. IWF regularly advocates positions favorable to their corporate funders, promoting the extractive industries and pipeline construction, opposing government health care claiming that it would increase deaths from breast cancer, and boasting that IWV played a key role in flipping Wisconsin red for Donald Trump in the 2016 election.

IWV has received $4.2 million in funding from Leonard Leo network groups. Leonard Leo is a long-time leader of the Federalist Society, which was instrumental in packing the Supreme Court with right-wing justices, especially during the Trump administration. IWV cast doubt on election integrity prior to, and after, the 2020 presidential election. Two days after the election, Tammy Bruce, then IWV president, called on Trump to do “everything in his power… [to make this] a fair and free election.” IWV also “downplayed the gravity of the insurrection in a multitude of ways.”

Although IWF has been called a “secular” counterpart to religious right women’s groups such as Concerned Women for America, IWF is a member of the Council for National Policy (CNP) and frequently works with Christian nationalist women’s groups in the CNP network. IWF promotes “traditional family values,” and IWV funds anti-abortion candidates for political office. For example, IWV donated $67,242 to Senate candidate Todd Akin following his infamous claim that if a rape was “legitimate,” a woman wouldn’t get pregnant because her body would “shut that whole thing down.” 

Heather Richardson Higgins

IWF publicly positions itself as nonpartisan, but Heather Higgins, President of Independent Women’s Voice, Board Chair of IWF, and gold circle member of the CNP, tells potential donors that this pretense is advantageous for drawing women into the conservative orbit:

Being branded as neutral, but actually having people… know that you’re actually conservative puts us in a unique position. Our value here and what is needed in the Republican conservative arsenal is a group that can talk to those cohorts [women who are not Republican conservatives] that would not otherwise listen, but can do it in a way that is taking a conservative message and packaging it in a way that will be acceptable.

This neutrally-branded organization is now advocating a bill that would accomplish several right-wing goals; targeting the Democrats in an election year, redirecting away from the ERA, and most important, enshrining “intermediate scrutiny,” rather than “strict scrutiny,” as the standard for adjudicating sex-based discrimination. WoLF claims the bill is “nonpartisan,” but notes that only Republicans have supported it. In a May interview for the podcast Savage Minds, WDI USA president Kara Dansky described the political trap for Democrats of opposing a bill that would seem to benefit women:

I am fascinated to see how the Democrats position themselves in being against  something called “The Women’s Bill of Rights.” That’s literally the name of this bill in both chambers…

And I am fascinated to see how Speaker Pelosi positions herself as being in opposition to something called the Women’s Bill of Rights. She’s a brilliant politician, so I’m sure she’ll come up with something… I just don’t know how she’s going to be able to do this, but I’m fascinated to see how she does…

As Dansky savors potential discomfiture for the Democrats, Jennifer Braceras, director of IWF’s law center, and WoLF legal director Lauren Adams, pursue the goal of blocking ERA-style attempts to remedy sex inequality. In 2020, Virginia became the 38th state to ratify the Equal Rights Amendment. But the amendment has stalled, even as activists with ERA Coalition, National Organization for Women, Women's March and other groups pressure the Biden administration and the US archivist to publish it. Braceras and Adams argue that the ERA is “outdated” and “expired” and advocate for a judicial standard of “intermediate scrutiny” that would be enshrined by passage of the WBR.

In Constitutional law there are categories of people called “suspect classes” that includes race, religion, and national origin. These categories are protected by the First, Thirteenth, Fourteenth, and Fifteenth Amendments of the Constitution. The highest level of scrutiny, called “strict scrutiny,” is given to cases involving “suspect classes.” What this means is that the Court looks very hard at whether the law or regulation allowing differential treatment infringes on a Constitutional right.

The original definition of the word “discrimination” meant “differentiating” between one thing and another; e.g. a person with discriminating tastes in food might choose a dish prepared from fresh ingredients rather than processed food. It has come to connote inequality in “rights” discourse. In cases of sex-based inequality, we sometimes want and need differential treatment. For example, in sport we want to allow some discrimination/differentiation between the sexes. Males have significant physical advantages over females. So we want sex-segregated sport - but not unequal resources for sport - as was the case before Title IX. Then women’s sports were given short shrift, with no money for proper uniforms, professional dedicated coaching, and so on.

WoLF argues that if the ERA were passed with its current language, the new strict scrutiny standard would require men and women to be treated exactly alike. But race discrimination requires a strict scrutiny standard, and affirmative action based on race in areas like university admissions has differentiated minorities from majority-group students. That standard does allow, then, for special efforts to be made impacting women favorably in the same manner, if the ERA were passed.

The WBR, if passed as a constitutional amendment, could also raise “sex” to a suspect class requiring strict scrutiny. However, language in the resolution specifies that “policies and laws that distinguish between the sexes are subject to intermediate constitutional scrutiny,” a standard of scrutiny below “strict” and above “rational basis,” the lowest standard of scrutiny [emphasis added].  Intermediate scrutiny emerged in the 1970s when the Court first acknowledged sex-based discrimination, which was not considered obstructive enough to apply the strict scrutiny test.

Furthermore, “the Court has produced what appear to be inconsistent precedents, arriving at different judgements in near-identical situations” when applying intermediate scrutiny. For example, in Kahn v Shevin (1974) the Court ruled that Mel Kahn was not entitled to caregiver tax-benefits while caring for his mother because those were intended only for women. Whereas in Weinberger v Wiesenfeld (1975), the Court ruled in favor of widower Stephen Wiesenfeld who had been denied Social Security benefits to care for his son because he was a man. 

Even though the intermediate scrutiny test was used to evaluate both cases, the Court weighed the plaintiffs' equal protection claims against state interests to "protect" women differently in Kahn than in Weinberger.

Finally, it is unusual to specify in a bill which judicial standard should be applied and may result in the Court throwing out the WBR if it is enacted. Any attempt coming from Congress to require the judiciary to use any particular style of judicial reasoning could be unconstitutional as violating the separation of powers doctrine of Article III. The Court's job is to develop and use its own standards of review to interpret law and apply it to facts.

The Women’s Bill of Rights will not meaningfully address sex-based inequality and may even be harmful. It merely affirms biological differences between the sexes. While that may keep prisons, restrooms, locker rooms, and sport sex-segregated, it can also be used against us. Historically, women have been barred from higher education, certain jobs, and equal pay based on biological sex. 

Rather than raising the standard of scrutiny for sex-based discrimination to the same level as for race-based and religious-based discrimination, WBR specifically calls for the lower standard, intermediate scrutiny, to be applied. The bill was written by an anti-feminist organization, IWV, and a questionable one, WoLF. It is endorsed by numerous anti-feminist organizations and sponsored by far-right politicians including Representative Debbie Lesko (R-AZ ) and Senator Ted Cruz (R-TX). The so-called “Women’s Bill of Rights” clearly does not serve feminist goals.

Transgender politics has backed women into a difficult and risky position. It forces us at every turn to reaffirm and emphasize biological differences, and our vulnerability in a violent male culture, if we hope to preserve and maintain sex-segregated spaces, fairness in sport, and to reserve for females only set-asides and accommodations intended to remedy sex inequality. Yet the emphasis on biology can be so easily turned against us, and we are at particular risk with the rise of Christian nationalism and the assault on reproductive autonomy. If we are returned to a status where motherhood is viewed as our primary purpose, there is almost no limit to the restrictions that can be imposed on us in the name of biology. We can - and must - find better solutions to solving the problem of gender identity overriding sex in policy and law.

1. Independent Women’s Forum (IWF) is the initial group and is organized as a 501(c)(3). That type of nonprofit is limited in the types of politicking it can do. There are legal limitations on their lobbying for legislation and ballot measures, and they are not allowed to endorse political candidates or make campaign contributions. So they created a “sister” organization, a 501(c)(4), Independent Women’s Voice (IWV), that IS allowed to do these things, as many political nonprofits do. For example, Heritage Foundation’s issue advocacy arm is Heritage Action. I switch back and forth talking about the two sister organizations throughout this piece.