The Supreme Court’s ruling today that it’s illegal to fire someone for being gay or transgender was made possible by Howard W. Smith (D.-Va.), the segregationist Rules Committee chairman who added “sex” to the 1964 Civil Rights Act’s protected categories (race, color, religion, national origin) in hopes that that would kill the bill’s chances of passage. Smith’s inadvertent role in advancing women’s rights, and now gay and transgender rights, comes in for some discussion both in Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County (where it’s cited as evidence that congressional intent ain’t what it’s cracked up to be) and in Justice Samuel Alito’s rather bitterly worded dissent (wherein he argues that if Smith had really wanted to sink the bill he should have added explicit protections for homosexuals).
But if we’re traveling upstream for Bostock’s origins, don’t lets stop at Smith. At whose suggestion did Smith insert “sex” into the landmark bill? The answer appears to be the women’s suffragist (she hated the term “suffragette”) Alice Paul, who in 1916 founded the National Women’s Party.
Paul is best known as a hunger striker and all-around ferocious advocate for passage of the 19th amendment in 1920. But Paul was also a significant player, 44 years later, in passage of the Civil Rights Act.
The cause that Paul dedicated her life to after women’s suffrage was women’s equality, and it was not a cause especially favored by liberals. For decades, Democrats and labor unions opposed the Equal Rights Amendment, which Paul initiated in the 1920s, because it threatened state laws passed during the Progressive Era that created wage floors and maximum-hours limits for women and children. Organized labor was also, of course, reluctant to encourage the entry of women into a labor market that was overwhelmingly male.
So Republicans and conservative Democrats embraced the ERA instead. It was a way to tweak liberals like Eleanor Roosevelt (who favored women’s rights but not ERA) and also it was a cause that was reasonably popular among rich white women. One conservative who introduced the ERA in session after session was Smith. “He had always been a sponsor of ours,” Paul recalled in an oral history.
According to Paul, when she suggested he introduce an amendment adding sex to the civil right’s bill’s list of protected categories, Smith told her: "You know, this is an awful act. We never should enact such a thing as this.” (Paul doesn’t appear to have tried to dissuade Smith on this point.) Initially Smith begged off, saying, “They'll all say that I'm trying to use this to defeat the act itself.” But eventually Smith came around, because … he really was trying to defeat the act itself.
Alice Paul by this time had become a fringe figure. Membership in her National Women’s Party had dwindled to about 1400. The NAACP was opposed to adding sex to the bill, and so was just about anyone else with strong liberal credentials, including major women’s groups. But in the end Congress passed the bill, with sex included.
Alice Paul’s sole interest in adding the word “sex” to the Civil Rights Act—and pretty much her only interest in life-- was to establish legal equality for women. But was Paul herself gay?
She never married and had no children. The National Women’s Party, as it shrank in the decades after 1920 and its members grew older, became cult-like. One observer called it “in-grown to the point of fanaticism.” The party’s Capitol Hill headquarters, Belmont House, “served not only as an office but also as a permanent residence, feminist hotel for visitors, and clubhouse,” according to an article by Leila J. Rupp in the Summer 1985 journal Signs.
Strong friendships were cultivated at Belmont House, Rupp writes. So was extreme devotion to Paul. And so were “couple relationships between women.” Did extreme devotion to the cult lead to sexual relationships with the cult’s leader (as has tended to happen in male-led cults)? One recruit who turned against the National Women’s Party reported being told of “weird goings on at Wash. hedquts. wherein it was clear she thought of Paul a devotee of Lesbos.” Rupp concludes this was homophobic nonsense, and that the most one can say is that Paul maintained “close friendships with a number of women” who were gay.
But nobody really knows, because Paul was obsessively private. “We know almost nothing … about her sexuality,” conclude her biographers, J.D. Zahniser and Amelia R. Fry. “She culled the National Women’s Party (NWP) papers to banish lingering evidence of her life beyond her work, and left precious few clues in her personal papers.”
So maybe Paul was gay, and maybe she wasn’t. Either way, she appears to have been an object of anti-gay prejudice. And if Paul counted many gay women among her friends and comrades, it’s not hard to imagine that she would take satisfaction in the Supreme Court’s ruling in Bostock.