The Women’s Bill of Rights Is Not the Solution to Gender Identity Policy Wrongs

As various versions of the Women’s Bill of Rights are moving through state legislatures, it is time to revisit the problems with this model legislation.

As various versions of the Women’s Bill of Rights are moving through state legislatures, promoted by Women’s Liberation Front (WoLF) and the US chapter of Women’s Declaration International (WDI USA), it is time to revisit the problems with this model legislation. I first wrote about this bill, which is intended to remedy the problem of gender identity increasingly overriding sex in law and public policy, in 2022 when it was introduced into both houses of Congress. Sponsored by far-right politicians including Representative Debbie Lesko (R-AZ ) and Senator Ted Cruz (R-TX), the bill is endorsed by a number of anti-feminist groups including Concerned Women for America, Heritage Foundation, Family Policy Alliance, Eagle Forum, and Conservative Political Action Committee (CPAC).

The proposal is a joint project of WoLF, a self-described “unapologetically radical feminist” organization that writes numerous amicus briefs for the Christian nationalist organization Alliance Defending Freedom (ADF); and the issue advocacy arm of Independent Women’s Forum (IWF), Independent Women’s Voice (IWV).

IWF has a long history of anti-feminist activism. 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, IWF has opposed the Violence Against Women Act, attacked access to paid Family and Medical Leave, and denied disparities in wages between the sexes, arguing that any differences are due to women’s choices.

Notably, before the issue of trans-identified males in female sports emerged, IWF opposed Title IX, arguing that it “artificially manufactures interest in sport among women'' and “harms men by taking resources for sport away from them.” Now that males in female sport has emerged as a “culture wars” issue, IWF champions sex-segregated sport. IWF is a member of the advisory board of Project 2025, a far-reaching and reactionary policy agenda intended for implementation by the radical right, should Donald Trump be re-elected, which includes “a rollback of civil and political rights for women.”

IWF’s issue advocacy arm, IWV, supports 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.” IWV has received $4.2 million in funding from Leonard Leo, long-time leader of the Federalist Society, who was instrumental in packing the Supreme Court with right-wing justices that overturned Roe v Wade.

As one might expect, such organizations cannot be expected to produce legislation that advances women’s interests. The main problems with the Women’s Bill of Rights are these:

I. It does not enumerate any rights.

There are no rights enumerated in the original text of the Women’s Bill of Rights. Most of the text of the bill involves affirming the existence of biological difference 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. It also calls for data collection by the government to be disaggregated by sex.

II. Affirming biological difference is not sufficient.

Merely affirming biological difference between the sexes is not sufficient for remedying sex inequality or guaranteeing women’s equal standing with men under the law, and may even be turned against us. Biological sex, historically, and still today, is the basis of female oppression. For example, in the not-so-distant past, US women were denied jobs, entry to some professional degree programs, credit cards, and other material resources on the basis of sex. As a feminist lawyer and colleague explains, 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.

Every theocratic regime agrees that “woman” means “biological female;” that acknowledgment alone is no guarantee of women’s rights. In a time of rising Christian nationalism, with draconian anti-abortion laws enacted, and rumblings of restricting birth control and ending no-fault divorce, a bill that emphasizes our biological weakness and differences, without addressing discrimination against us, may even be dangerous.

III. “Intermediate scrutiny” enshrines second-class status.

Of the three standards of scrutiny in Constitutional law -  strict, intermediate, and rational basis - the Women’s Bill of Rights calls for “intermediate scrutiny” to be applied to sex discrimination cases. 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, but merited closer consideration than the rational basis test would afford.” With no specific constitutional protection for women, as there is for religious- and race-based discrimination, the Court felt free to develop an intermediate standard.

Thus, the Women’s Bill of Rights would enshrine a standard of scrutiny for sex discrimination cases that is less strict than that for race- and religious-based discrimination. Keeping sex discrimination to the intermediate standard of scrutiny has long been a goal of right wing politics.

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The bills moving through state legislatures vary, but like the federal model, they do not live up to the name. The Kansas Women’s Bill of Rights, passed in 2023 over the veto of its Democratic governor, is nearly identical to the bill introduced in Congress, except for the provision regarding intermediate scrutiny. The Arizona bill, passed by the state legislature, and likely to be vetoed by the governor, is markedly different, in that it includes a provision for equal treatment between the sexes. However, it also calls for “gender” to be replaced everywhere in Arizona law by “sex,” presumably even where sex does not matter, an overreach that may cause significant harm.

This state shall replace the stand-alone term “gender” with “sex” in all laws, rules, publications, orders, actions, programs, policies, and signage."

The Georgia bill, introduced in the House last February, goes further, removing both gender and sexual orientation from hate crime statutes. It also calls for intermediate scrutiny to be applied to “laws, rules, and regulations that distinguish between the sexes.” 

Whenever a law enforcement officer investigates an incident of a crime in which it  appears that the defendant intentionally selected any victim or group of victims or any  property as the object of the offense because of such victim's or group of victims' actual or  perceived race, color, religion, national origin, sex, sexual orientation, gender, mental  disability, or physical disability, whether or not an arrest is made, the officer shall prepare  and submit to the law enforcement officer's supervisor or other designated person a written report of the incident entitled 'Bias Crime Report.'

In a perfect illustration of how little this bill has to do with women’s rights, a legislator in Tennessee tried to insert an actual right for equal pay into the draft, but the committee chairman ruled it wasn’t “pertinent” to the bill.

Republicans in dozens of state legislatures are introducing these bills with “governors in two states, Nebraska and Oklahoma, issu[ing] executive orders with the same goal as the legislation.” 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 reclaim sex-segregated restrooms, shelters, prisons, and fairness in sport. While these bills offer such provisions, they do not remedy historic and continuing sex-based inequality, and so may easily be turned against us, especially with the rise of Christian nationalism. We need to be suspicious of, and to resist, legislation advocated by anti-feminist factions that is promoted as serving our interests.