Equal Rights Amendment: Could Joe Biden’s Ratification Change Women’s Rights?

In one of his last acts as president, Joe Biden declared the Equal Rights Amendment (ERA) ratified, potentially enshrining equality in the US Constitution as its 28th Amendment.

“It is long past time to recognize the will of the American people,” Biden said. “In accordance with my oath and duty to the Constitution and the country, I affirm what I believe and what three-fourths of the states have ratified: The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protection under the law regardless of their gender.”

What is the Equal Rights Amendment?

First introduced by women’s rights activist Alice Paul in 1923, the ERA is a concise declaration of equality: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

The amendment gained significant momentum in the 1970s, but failed to achieve the necessary state ratifications within the original deadline set by Congress. The proponents claim that the deadline, which only appears in the preamble and not in the text of the amendment, is non-binding.

Supporters argue that the ERA is essential to codifying gender equality in the Constitution, providing stronger legal grounds to fight discrimination. Opponents, however, express concerns about potential unintended consequences, such as its implications for issues such as abortion rights and the military draft. They also argue that the original congressional deadline invalidates recent state ratifications.

Equal Rights Amendment: Full Text

The ERA reads: “Equal rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” It gives Congress the power to enforce the amendment through appropriate legislation and establishes its effectiveness two years after ratification.

Does Biden’s statement have any legal effect?

Biden’s statement is unlikely to have any legal impact, since presidents play no formal role in the constitutional amendment process.

The head of the National Archives has previously stated that the amendment cannot be certified because it was not ratified before the congressional deadline. Despite this, Democrats have urged Biden to act unilaterally before he leaves office next week. Some members of Congress are also planning a rally at the National Archives to advocate for the ERA’s certification.

Senator Kirsten Gillibrand, who has spearheaded the Senate’s efforts to advance the ERA, has criticized the archivist’s analysis as flawed. She argued that Colleen Shogan, the head of the National Archives, “wrongly inserts herself into a clear constitutional process, despite her role being purely ministerial.” Gillibrand has urged Biden to certify the ERA despite Shogan’s objections.

How long has the fight to codify the ERA been going on?

The push for the ERA began a century ago, but debates over its ratification have continued for decades.

Congress approved the ERA in 1972 and originally set a deadline of 1979 for three-quarters of state legislatures to ratify it. The deadline was later extended to 1982. However, it wasn’t until 2020 — nearly 40 years later — that Virginia lawmakers voted to ratify the amendment, achieving the necessary 38 state ratifications.

In 2023, Congress tried to remove the deadline to clear the way for ratification, but the measure fell short of the 60-vote threshold in the Senate.

How many amendments are there to the constitution?

The US Constitution currently recognizes 27 amendments. If legally validated, the ERA would become the 28th Amendment.

Changes often face significant political and legal obstacles. For the ERA, legal ambiguities surrounding deadlines and state revocations are expected to lead to litigation to determine its status.

The most recent amendment to the Constitution, the 27th Amendment, was adopted on May 7, 1992.