The Equal Rights Amendment is retro. It evokes images of Gloria Steinem, the 1970s, and a bitter loss in the fight for equality. In 2019, all things retro are suddenly popular and the ERA is no exception. There is an opportunity to expand the scope and rebrand the law from an outdated, predominately cis, white movement to an all-inclusive agenda that better fits the legal challenges of current and future generations.

The ERA reentered public dialogue largely thanks to movements like the Women’s March and #MeToo, but many states have quietly made tremendous progress on bringing this conversation back to the surface.  In May 2018, Illinois became the latest state to ratify the federal ERA, making us only one state away from adopting the ERA into our federal constitution. Setting aside the inevitable legal challenges (namely sufficiency of the Fourteenth Amendment, passed expiration dates, and rescinded ratifications), we should begin discussing issues of interpretation that await us after adoption. The courts will need to decide how to interpret the ERA’s language, specifically the word “sex,” and whether equality of rights will extend to the LGBTQ+ community.

Unsurprisingly, there is disagreement in the legal context on how to interpret the word “sex.” Federal courts, however, have held that Title VII and IX’s prohibition against sex discrimination includes discrimination against transgender individuals. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018), cert. granted in part, 139 S. Ct. 1599 (2019) (holding that firing a trans woman for failing to conform to sex stereotypes violated Title VII), Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. Of Educ., 858 F.3d 1034 (7th Cir. 2017) (finding a school district would violate Title IX by preventing a transgender male student from using the boy’s bathroom). But under the current administration, relying on past precedent is risky.

Instead, states are in a much better position to protect individual rights. Remember, states are well within their constitutional bounds to expand on federal constitutional protections, and they do so regularly. Earlier this year Delaware added an ERA to their state constitution, joining 25 other states who have already done so. It would make sense for Wisconsin to go next.

Wisconsin has fallen behind in the fight for equality, especially within the Midwest. Even though Wisconsin was one of the first states to ratify the federal ERA in 1972, it failed to join its neighbors Illinois, Indiana, and Iowa in passing a state ERA.  However, because Wisconsin previously failed to pass a state ERA, it now has an opportunity to pass one with the explicit intention of including the LGBTQ+ community, influencing the dialogue and debate nationally. This move would help Wisconsin come back into the arena as a policy making state on this issue.

Advancements on the state level will lay the groundwork for future federal interpretations. Wisconsin’s decisions would be persuasive to the Supreme Court in part because it is a political heavyweight, but also because Wisconsin has already played an influential role in litigating protections on the basis of sex, in particular for transgender individuals. See Flack v. Wis. Dep’t of Health Servs., 328 F. Supp. 3d 931, 951 (W.D. Wis. 2018) (holding differential treatment of transgender individuals based on sex-stereotypes is sex discrimination), Boyden v. Conlin, 341 F. Supp. 3d. 979, 1000-02 (W.D. Wis. 2018) (holding exclusion of certain procedures and services related to gender reassignment from health insurance coverage constitutes sex discrimination under Title VII and the ACA).

In this moment Wisconsin has an opportunity and a responsibility to ensure that equality of rights under the law will not be denied or abridged on the basis of sex, which includes not just women, but the entire breadth of the LGBTQ+ community.

 This article was written by Josephine Clark, a law student at the University of Wisconsin-Madison, and Asma Kadri Keeler, a staff attorney at the ACLU of Wisconsin.

In response to numerous reports of racial harassment at its elementary and high schools, the Greendale School District promised to implement an equity plan that would foster a welcoming an inclusive learning environment for all students.

Despite genuine attempts by parents and community members to establish such a plan and despite claiming to be the leader of the equity plan rollout, it appears Greendale’s superintendent Gary Kiltz does not share the same level of concern for addressing racism in his District as he has repeatedly asserted.

Given the slew of complaints ACLU of Wisconsin, and the Greendale School District, has received from students who say they’ve experienced racism at school, along with countless media reports and parent complaints, we find Superintendent Klitz’s decision not to attend Friday’s meeting particularly troubling. 

According to Greendale residents working to develop the action plan, Dr. Kiltz announced that he will not attend a steering committee meeting this Friday, where a final draft of the proposal is expected to be revealed for the public’s approval. The Superintendent informed the Committee, on which he serves as a co-chair, of his intent to miss the meeting only a week before the event, despite knowing of his pending absence for months. 

Members of the Steering Committee, many of whom belong to a group called Parents Advocating for Greendale Equity (PAGE), feel that this development, along with a multitude of other incidents, demonstrates that Superintendent Klitz has not taken this issue seriously enough. 

“PAGE members have long suspected that Dr. Kiltz has been acting in bad faith throughout this process and is not genuinely committed to making equity and inclusion an urgent priority in our community,” said Diania Merriett, the mother of an ACLU client and student who was persistently racially harassed at Greendale High School.  “His carelessness and lack of respect for his collaborators in this endeavor confirms this.” 

ACLU of Wisconsin Staff Attorney Asma Kadri Keeler provided the following statement:

“We have repeatedly urged the School District to commit to proactively combat racial harassment in its schools. Throughout this process, Dr. Kiltz has defended his actions as sufficient despite failing to attach value to student testimony of bullying and harassment, publicly dismissing parent complaints, and now choosing to miss a meeting he claims as one of his commitments to pursue racial equity. 

The fact that Dr. Kiltz knew he could not attend this meeting for months and is now informing the public shows, at best disrespect for the time and commitment of those involved in this project, and at worst, a serious indifference for achieving racial equality in his school district.”

Over the past two months, the ACLU of Wisconsin has traveled the state sounding the alarm about Wisconsin’s broken criminal justice system and the devastating impact of crimeless revocations. Crimeless revocation is when someone is sent back to prison for violating a technical rule of probation rather than for committing a new crime, and the consensus is clear on the need to abolish this harmful and counterproductive practice.

Our tour took us to Eau Claire, Racine, Brown Deer, Oshkosh, Wauwatosa and Green Bay – and on every stop, we heard from people whose lives have been destroyed by crimeless revocations.

The stories are as shocking as they are unfair. A man was sent back to prison for moving from one apartment in a duplex to the other without prior approval from his parole officer. A mother who had been on probation successfully for nine years was reimprisoned based on unfounded allegations, causing severe anxiety for her young daughter and disruption for her family and employer. A college student who was on supervision was investigated and jailed, and while he was not sentenced to prison, he had to drop out of school, and lost his job and housing. A business owner was imprisoned for six months because of allegations that he had a gun in his house. He didn’t, but since they found some beer instead, he was incarcerated and all of his employees became unemployed - even though neither alcohol nor drugs had anything to do with his initial sentence. 

Forcing people to live one technical violation away from being thrown back in prison has consequences for all people in Wisconsin. In 2017 alone, well over three thousand people were revoked for technical violations, accounting for 45 percent of all new admissions to our state prisons. The cost of crimeless revocation is astronomical, costing Wisconsinites $197 million in taxes. Crimeless revocation also fuels a mass incarceration crisis that starves funding from other priorities like schools, public safety and infrastructure. By continuing the practice of  crimeless revocation, Wisconsin is ripping apart families, choking local economies, and upending entire communities and none of this is making Wisconsin any safer. 

Wisconsin deserves better. No one should ever be imprisoned based on something as innocuous as missing an appointment or taking a job without prior approval from the state. 

Fortunately, a bipartisan coalition of advocates, experts, and formerly incarcerated individuals are coming together to expose the scourge of crimeless revocations. On our tour, we talked with law enforcement leaders and policy experts, business owners and government officials – and the consensus was overwhelming: Wisconsin’s crimeless revocation policy is unfair, unjust and in urgent need of reform. Attendees on both the right and left of the political spectrum universally supported changing supervision and revocation practices so that they invest in people, rather than prisons. 

Rather than being trapped in a revolving door of incarceration and supervision, people on parole, probation or extended supervision should be given the support and opportunities they need to thrive in their communities. By eliminating crimeless revocation, removing barriers to post-prison employment, and expanding local opportunities for people to access alcohol and drug treatment or mental health programs, we can build a more prosperous and free state.

Mass incarceration is a crisis defined by decades of misguided philosophies and ill-informed bipartisan policies across the country. The problems in our current system represent a collective failure. In order to transform this broken system, we need to build a bipartisan movement that involves sustained action from both government officials and the public. 

Our journey across Wisconsin proved that the tide around mass incarceration has turned, and the time to act is now.