State lawmakers heard an avalanche of support Tuesday for a bill that would ask voters to amend the state Constitution to explicitly prohibit discrimination based on the sex of an individual.

An explicit prohibition on sexual discrimination is not contained in either the U.S. or state constitutions, although anti-discrimination laws have been passed both federally and at the state level.

Proponents framed the proposed amendment, which would need to be approved by voters before taking effect, as long overdue and necessary to ensure future lawmakers don’t roll back existing anti-discrimination laws. Opponents, however, argued that the amendment would lead to a host of unintended consequences, ranging from mixed-gender bathrooms and dormitories to a constitutional right to taxpayer-funded abortions.

The bill’s sponsor, Rep. Lois Reckitt, D-South Portland, has been advocating for constitutional amendments at the state and federal levels for about 50 years. Reckitt recalled how the effort came close to winning the two-thirds support needed to place the amendment before Maine voters, falling six votes shy in 2017 and two votes shy in 2019.

Reckitt kicked off the nearly 3½-hour hearing before the Judiciary Committee by reading testimony submitted by a 7-year-old girl named Zoey from Old Town, who urged passage to “help girls grow up to be treasured as much as boys.”

The committee received 186 written comments, mostly in support of the proposal. It will hold a work session in the coming weeks before voting whether to recommend it to the full Legislature.

Maine ratified the federal Equal Rights Amendment in 1974, but the movement to enshrine it into the U.S. Constitution received support from only 35 states – shy of the 38 required for a three-quarters majority.

Since then, lawmakers have tried repeatedly to amend the state Constitution, without success. While falling two votes shy in 2019, the bill’s fate is far from certain this year. Republicans have gained about eight seats in the House since the last vote, and any debate this year will be infused with election-year politics, with all of the legislative seats and the governor’s office up for election.

At Tuesday’s hearing, a virtual procession of elected Democrats and state officials, including Gov. Janet Mills, Secretary of State Shenna Bellows and Attorney General Aaron Frey, testified in support of sending the amendment to voters, arguing that it is needed to address gaps in current anti-discrimination laws, including employment, wages, domestic violence and violence against women.

Mills noted that the state’s Constitution has been amended 174 times in the last 187 years, including the addition of a constitutional right to food that was approved by voters last year. Other amendments, she noted, included preserving the right to keep and bear arms, line-item veto power over the budget, repeal of the poll tax, and enacting and later repealing prohibition on liquor.

MILLS TESTIFIES

“I ask you, is any of these 174 measures more important than the granting of equal rights and protections to our citizens regardless of sex?” Mills said, urging lawmakers to give voters the opportunity to join 26 other states to amend their constitutions.

“While our state and our nation unquestionably have made great progress in effectuating equal rights for women and men, that change has been piecemeal, intermittent and impermanent,” Mills added. “And those laws, which cover discrimination only in specific areas – employment, housing, credit, public accommodation and education – are ephemeral, subject to repeal or change at the whim of any particular legislature or initiative.”

Barbara Cray, a lawyer and filmmaker, said a constitutional amendment is needed more today than ever, alluding to the rise of far-right groups like the Proud Boys, who are openly pursuing a chauvinistic society and are willing to use violence to achieve it.

“Constitutional protection for women in our state is all the more necessary as our democracy is being so publicly challenged,” Cray said.

But the few opponents who testified worried about unintended consequences of passing such an amendment, especially on churches and religious freedoms.

Rep. Sue Bernard, R-Caribou, read testimony in opposition by the Roman Catholic Diocese of Portland.

The Diocese argued that women deserve equal rights under the law, but are fundamentally different from men, because they can bear children. The Diocese is concerned the amendment would be used to legalize abortion as a constitutional right.

Bernard, a former spokesperson for the Diocese, added that the amendment could threaten the tax exempt status of churches that have policies for men-only clergy and would generally prohibit any distinction between men and women, impacting a wide range of things.

“The Maine ERA would end boys-only and girls-only sports, including contact sports,” Bernard said. “It would jeopardize privacy and safety. Traditional male and female bathrooms, locker rooms, hospital rooms and rooms in nursing homes, etc. would be abolished. … This would seriously jeopardize the privacy of our children, our elderly and our hospital patients.”

FULL PROTECTION NEEDED

But Amy Sneirson, the executive director of the Maine Human Rights Commission, said the “parade of horribles” was largely based on fear. She argued that current anti-discrimination laws only cover “discrete areas” of a woman’s life and that an amendment is needed to offer full protection.

“Outside of those delineated parameters, the default is that sex discrimination remains legal,” she said. “The constitution was created for men by men. The default is that discrimination that is not prohibited is legal.”

For most proponents, a constitutional amendment is long overdue.

Posie Cowan, a Brookville resident and a founder of Equal Rights Maine, said she represents the fourth generation of her family to fight for the equal rights amendment. She said her great-grandmother began advocating in 1923.

“That is almost 100 years ago,” Cowan said. “I don’t want my daughter and granddaughters to be fighting for equal rights 50 or 80 years from now.”

Younger Mainers, meanwhile, expressed disbelief that equal rights for women has not already been enshrined in the constitution.

“As a young woman in today’s world, it seems incredible to me that we are even discussing this amendment, that we are even debating whether or not someone’s sex determines their value,” said Natalie Emmerson, a 16-year-old student advocate at Morse High School. “This bill is simply a moral question of equal rights. You either believe in them or you do not and your vote will represent that belief.”


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