Biden Declared the Equal Rights Amendment Ratified: What Is It? What’s Next?

Equal Rights Amendment supporters demonstrate outside Virginia State Capitol in Richmond, Va., on Jan. 8, 2020. Steve Helber /AP Photo

President Joe Biden announced on Jan. 17 that the Equal Rights Amendment (ERA), which was first proposed more than a century ago, is now the “law of the land.”

The legal effect of Biden’s statement is disputed.

Biden said in a statement three days before his presidency ends that he has supported the ERA for more than 50 years and that “we as a nation, must affirm and protect women’s full equality once and for all.”

The president said the final hurdle to the formal adoption of the ERA as part of the U.S. Constitution was overcome in January 2020 when the Virginia General Assembly voted to ratify the amendment.

Because three-fourths of the states have ratified the ERA, “leading legal constitutional scholars [say] that the Equal Rights Amendment has become part of our Constitution,” Biden said without citing specific scholars.

“The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex,” he said.

The National Archives and Records Administration (NARA) promptly contradicted the president, saying Virginia’s ratification of the amendment was legally irrelevant because the congressionally imposed deadline for adoption of the ERA passed decades ago.

Article V of the Constitution provides that an amendment can move forward if it is approved by a two-thirds vote of both houses of Congress or by two-thirds of states participating in a special constitutional convention. For an amendment to become part of the Constitution, after approval by Congress or a special convention, it must then be ratified by the legislatures of three-fourths of the states.

What Is the Equal Rights Amendment?

The ERA was first proposed in 1923 in Congress, three years after the formal adoption of the 19th Amendment, which gave women the right to vote. According to NARA, supporters said the ERA would bestow full equality on women by ending “the legal distinctions between men and women in terms of divorce, property, employment, and other matters.”

Women have advanced in American society even though the ERA failed to become part of the Constitution, the agency said.

“Women gradually achieved greater equality through legal victories that continued the effort to expand rights, including the Voting Rights Act of 1965, which ultimately codified the right to vote for all women.”

The current version of the ERA consists of 52 words that supporters say would guarantee equal rights for women as part of the Constitution.

The amendment reads as follows:

“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.”

What Happened After 1923?

The ERA went nowhere in Congress for almost 50 years until the U.S. House of Representatives approved it 354–24 in 1971, according to a chronology assembled by the National Organization for Women (NOW), which supports the amendment.

The U.S. Senate approved the ERA 84–8 the next year. Congress imposed a seven-year deadline for ratification.

In late 1978, Congress extended the deadline for ratification to June 30, 1982.

When the 1982 deadline arrived, the ERA had been ratified by 35 states, falling three states short of the 38-state minimum required for adoption.

Even though the deadline expired, supporters pressed on, arguing that the deadline was not legally binding because the Constitution does not state that ratification deadlines for amendments may be imposed.

In 2017, Nevada ratified the amendment, followed by Illinois in 2018, and the 38th state, Virginia, in 2020.

Five of the 38 states have rescinded ERA ratification, but whether they can do that is a subject of debate in legal circles. The states are: Nebraska (1973); Tennessee (1974); Idaho (1977); Kentucky (1978); and South Dakota (1979).

Who Urged Biden to Announce It Ratified?

ERA supporters view the amendment as a long-overdue affirmation of sexual equality in the United States.

A group of more than 120 Democrat lawmakers had asked the outgoing president to declare the proposed constitutional amendment to be considered adopted and to direct NARA officials to publish a statement to that effect.

“By directing the Archivist to publish the ERA, you will leave an indelible mark on the history of this nation, demonstrating once again that your legacy is one of expanding rights, protecting freedoms, and securing a more inclusive future for all Americans,” Rep. Ayanna Pressley (D-Mass.), and Rep. Cori Bush (D-Mo.), whose term ended earlier this month, wrote in a letter to Biden a month ago.

“We urge you to take this final, transformative step toward ensuring the full promise of equality for every person in the United States.”

Conservatives have long opposed the controversial amendment, which forbids discrimination “on account of sex” by the federal and state governments, arguing, among other things, that it would be socially disruptive and open the door to widespread litigation.

Some critics say the ERA could lead to wide-reaching changes to U.S. law depending on how the courts interpret the amendment, citing the courts’ expansive interpretations of the 14th Amendment that have dramatically altered American law.

Alabama Attorney General Steve Marshall said on Jan. 17 that Biden cannot add the ERA to the Constitution.

“No serious person believes the sham that a proposed amendment to the Constitution, which expired in the 1970s [sic] after being rejected by the American people, has somehow sneaked into our Constitution.

“Justice Ruth Bader Ginsburg and other ERA supporters recognized this reality decades ago. Every judge to consider the issue—including judges appointed by Presidents Obama and Biden—has rejected this preposterous notion.”

What Happens Next?

According to NARA Archivist Colleen Shogan and her deputy, William Bosanko, who are responsible for publishing official proclamations when a constitutional amendment has been adopted as part of the Constitution, the ERA died when only 35 states had ratified it as of June 30, 1982.

“As Archivist and Deputy Archivist of the United States, it is our responsibility to uphold the integrity of the constitutional amendment process and ensure that changes to the Constitution are carried out in accordance with the law,” they said in a joint statement on Dec. 17, 2024.

“At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”

A NARA spokesperson told The Epoch Times after Biden spoke on Jan. 17 that the position articulated by Shogan and Bosanko the previous month remains the same.

“This is a long-standing position for the Archivist and the National Archives. The underlying legal and procedural issues have not changed,” the spokesperson said.

The Department of Justice’s Office of Legal Counsel in 2020, while former President Donald Trump held office, and in 2022, after Biden took office, also said that adoption of the ERA cannot take place unless Congress or the courts retroactively extend or remove the ratification deadline.

The American Bar Association (ABA) takes the position that Virginia’s ratification in 2020 met the three-quarters threshold needed for adoption.

“I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution,” Biden said on Jan. 17.

Sen. Kirsten Gillibrand (D-N.Y.) urged supporters to sue over abortion restrictions now that the ERA is “the law of the land.”

“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,” Gillibrand said in a post on social media platform X.

“I know they will have ample support as they seek justice, and I promise to stand by their side in this fight.”

Zachary Stieber and Joseph Lord contributed to this report.