In 2020, Virginia became the 38th state to ratify the Equal Rights Amendment (ERA), giving it the exact number of states needed in order for the amendment to become part of the United States Constitution. Here's what you need to know.
What’s going on with the ERA right now
On Fri., Jan. 17, President Biden declared in a statement that the ERA is part of the constitution. He wrote, in part: “It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and 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 protections under the law regardless of their sex.”
While these words from Biden in the final days of his presidency are nice to hear, unfortunately, they are mostly symbolic. He declared that the ERA “is the law of the land,” but as NPR notes, he’d need to order Colleen Shogan, national archivist, to certify it as part of the Constitution. That’s not something he’s going to do, NPR says the White House told reporters on a conference call.
In December, Shogan, and her deputy, William J. Bosanko, issued a statement saying that the ERA “cannot be certified as part of the Constitution due to established legal, judicial and procedural decisions.”
Per The New York Times, Shogan and Bosanko cited “court decisions at the district and circuit levels, as well as memos from the Justice Department,” saying that certifying the ERA would not be a legal move. “The underlying legal and procedural issues have not changed,” National Archives Public and Media Communications staff said Friday, per CNN. This refers to the fact that the amendment was not ratified within the seven-year time frame originally set after both the House and Senate approved it in 1972. Since then, advocates — including the American Bar Association (ABA) — have long argued that the deadline is unconstitutional and should not affect the amendment’s validity.
After stating that the archivist “is required to publish an amendment once it has been effectively ratified,” a senior White House official conceded to CNN: “It will be up to the courts to interpret this and their view of the Equal Rights Amendment.”
The senior White House official told CNN that Biden “is using his power of the presidency to make it clear that he believes — and he agrees with leading constitutional scholars and the American Bar Association — not that it should be, but it is the 28th Amendment of the Constitution.”
So, what’s next? As New York Sen. Gillibrand wrote in a post on X, this “incredible moment for reproductive freedom” means that hopefully ERA-based lawsuits will push the courts to determine that the amendment is valid.
“Now, women living in states with restrictions on their reproductive freedoms can — and should — file suits to overturn these unconstitutional laws that discriminate on the basis of sex. I know they will have ample support as they seek justice, and I promise to stand by their side in this fight.”
Read more below for the history of the ERA and its path to ratification and certification.
To stay informed on what you can do and next steps, visit/follow Publisherera.org and the ERA Coalition.
On Nov. 22, 2024, 46 senators sent a letter to Biden, calling for him to instruct the archivist to publish the ERA into law. In part, the letter reads:
“We respectfully request that you direct the archivist of the United States to certify and publish the Equal Rights Amendment (ERA) as the 28th Amendment, which is the most effective means at our disposal to prohibit restrictions on women’s reproductive care nationwide. As you are keenly aware, after nearly fifty years under the protections of Roe, more than half of all Americans have seen their rights come under attack, with access to abortion care and lifesaving health care varying from state to state. A federal solution is needed, and the ERA is the strongest tool to ensure equality and protect these rights for everyone. It would establish the premise that sex-based distinctions in access to reproductive care are unconstitutional, and therefore that abortion bans — which single out women for unfair denial of medical treatment based on sex — violate a constitutional right to sex equality.”
On Dec. 12, Rep. Cori Bush (D-Mo.), led a coalition of lawmakers to urge the president to act now, stating: “The publication of the Equal Rights Amendment may be long overdue, but the stakes for gender equality have never been higher.” In her argument, Bush also pointed out that gender-affirming medical care for trans youth is at risk, with the Supreme Court hearing a case challenging Tennessee’s law (Senate Bill 1), which bans this kind of healthcare, last week.
“Our bodies, our rights, our lives are on the line,” Bush said. “While progress has been made in enacting laws that prohibit discrimination based on sex, equal rights are still not constitutionally protected … Donald Trump is about to take office again. This is a man who has been openly hostile to women, reproductive freedoms, our LGBTQIA+ community, Black and brown people and so many others,” Bush said.
The fight of the past few years
In early March 2021, a federal court halted an effort to add the ERA to the U.S. Constitution based on the 1979 deadline set for ratification, but did not rule on whether Congress could retroactively rescind the deadline. Just two weeks later, the House voted to remove the ratification deadline for the ERA, declaring the amendment would become part of the Constitution, as long as three-fourths (or 38) states had ratified it. Efforts by the Senate to remove the deadline were originally thwarted by Republicans, with 47 senators voting against taking up the measure in 2023.
At the same time, Biden released the following statement:
“I once again want to express my support for the ERA loudly and clearly. I have been a strong supporter of the ERA ever since I first ran for the Senate as a 29-year-old. We must recognize the clear will of the American people and definitively enshrine the principle of gender equality in the Constitution. It is long past time that we put all doubt to rest. I am calling on Congress to act immediately to pass a resolution recognizing ratification of the ERA. As the recently published Office of Legal Counsel memorandum makes clear, there is nothing standing in Congress’s way from doing so. No one should be discriminated against based on their sex—and we, as a nation, must stand up for full women’s equality.”
In a further twist, two joint resolutions in the 118th Congress (2023-2024), stated that the ERA “is therefore a valid constitutional amendment” after receiving ratification from 38 states. Now, the resolution states, it is up to Archivist of the United States, Dr. Colleen J. Shogan, to certify the ERA as the 28th Amendment of the Constitution. What’s more, in August of this year, American Bar Association delegates voted at their annual meeting that the previously disputed deadline was void and that the ERA has everything it needs to become law.
The beginning
The Equal Rights Amendment (ERA) was initially written nearly 102 years ago, in 1923, by members of the National Women’s Party, which was founded in 1912 by Alice Paul and Lucy Burns (two historical figures featured in the Tony Award-winning Broadway show Suffs). Paul and fellow activist Crystal Eastman first drafted the amendment after Congress finally voted to adopt the 19th Amendment into the U.S. Constitution.
It failed to gain traction due to divisions within the women's movement, though; working-class women were concerned the amendment would work against workplace protection laws, like those that made factories safer and limited the hours women were required to work.
The second wave
Starting in the 1950s, Michigan Congresswoman Martha Griffiths introduced the Equal Rights Amendment on the House floor every year, but it failed. In 1971, the ERA passed in the House, and then in 1972, it passed in the Senate. Congress set a seven-year deadline for at least three-quarters of the states — or 38 — to ratify the amendment.
As passed, this is the language contained in the ERA:
- “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 Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
- “This amendment shall take effect two years after the date of ratification.”
Enter Phyllis Schlafly
Soon after the ERA was sent for ratification, political organizer Phyllis Schlafly founded the organization "STOP ERA" to oppose it. She argued the ERA would lead to women losing special privileges, like the right to be supported by their husbands, and introduce the dangers of gender-neutral bathrooms and women being drafted into the military.
Still, by 1974, 33 states ratified the ERA. By 1979, though, the ERA was only ratified by 35 states. In 1978, Congress extended the deadline to 1982, but no additional states ratified the amendment during that time.
The “three-state strategy”
Decades later, activists adopted a "three-state strategy" to finally meet the 38 state goal, despite the passed deadline. And they were successful: Nevada ratified the amendment in 2017, Illinois ratified it in 2018, and Virginia did so in 2020.
Why the ERA is urgent in this moment
As the ERA Coalition states, “The recent re-election of Donald Trump amplifies the importance of the ERA. During his previous term, the Trump administration actively blocked the ERA from publication and rolled back protections for women, despite the amendment’s ratification. Now, with a limited timeframe before a new administration takes office, The Legacy We Deserve: ERA Now campaign urges President Biden to take this final, historic step to make gender equality a constitutional right.
“Publishing the ERA would create constitutional protections against gender-based discrimination, providing a stronger basis to fight gender-based violence, pay inequality, and other forms of discrimination that disproportionately affect women and marginalized groups. Without formal recognition, these issues remain challenging to address under existing legal frameworks, leaving basic rights vulnerable to shifting political agendas.”
What you can do now
To stay informed on what you can do and next steps, visit/follow Publisherera.org and the ERA Coalition.
More resources and information
For more information and ways you can show your support for the ERA, like joining the ERA Coalition’s efforts to support gender equality in the local, state, and federal level, visit ERACoalition.org.
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