In a statement made during his last days in office, President Joe Biden declared the Equal Rights Amendment (ERA) as ratified. This last-minute move by the outgoing president aims to solidify the ERA’s status as the 28th Amendment to the United States Constitution, promising equal legal rights regardless of sex.

Background of the ERA

The ERA, first passed by Congress in 1972, stipulates that equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex. It required ratification by three-quarters, or 38, of the states, a milestone ostensibly reached in January 2020 when Virginia became the 38th state to ratify the amendment. 

Biden’s Unprecedented Statement

President Biden’s statement on Jan. 17, rekindles the discourse surrounding the ERA, particularly in the context of the ongoing struggle for reproductive rights and gender equality. 

“I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex. We, as a nation, must affirm and protect women’s full equality once and for all,” Biden said in a statement.

“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.”

Legal Controversies and Challenges

The journey toward the ratification of the Equal Rights Amendment (ERA) has been fraught with legal complexities and debates. Initially passed by Congress in 1972, the amendment came with a ratification deadline initially set for 1979, which was later extended to 1982. Over the years, several legal opinions, including those from the Office of Legal Counsel at the US Department of Justice, have supported the enforceability of these deadlines. 

The American Bar Association (ABA), during its 2024 Annual Meeting, addressed these issues head-on. It adopted a resolution rejecting the notion that time limits for the ratification of constitutional amendments are consistent with Article V of the Constitution. The ABA also argued that Article V does not permit states to rescind their ratification once it has been made. This stance is intended to bolster the argument that the ERA has been validly ratified, despite the procedural and timing controversies.

The National Archives has echoed concerns similar to those raised by the Department of Justice, maintaining that the ERA cannot be certified as part of the Constitution due to the unresolved legal and procedural issues, particularly the past ratification deadlines and rescissions. This position by the National Archives sets the stage for potential judicial intervention to ultimately determine the amendment’s status, an area where the ABA’s resolution could play a critical role in shaping the legal arguments for the ERA’s defense and implementation.

Implications for Americans

If ultimately certified, the ERA could profoundly impact American lives by formally codifying gender equality in the Constitution, strengthening legal protections against discrimination. This could influence various aspects of public and private life, including employment, education, and access to services, ensuring that gender does not dictate one’s legal rights and freedoms.

Potential Impacts of the Equal Rights Amendment on American Society

If the Equal Rights Amendment (ERA) becomes part of the United States Constitution, it would represent a significant shift in the legal landscape, fundamentally altering how rights and protections are applied across various sectors of society, including employment, education, and access to services. Here’s an exploration of how the ERA could reshape these areas:

1. Employment

The integration of the ERA into the Constitution would strengthen the legal framework against gender discrimination in the workplace. This would entail more rigorous enforcement of equal pay for equal work, regardless of gender. Employers might face stricter scrutiny regarding wage disparities, hiring practices, and promotions. The amendment could lead to more substantial penalties for violations of gender equality, potentially resulting in a more equitable workplace environment.

Moreover, the ERA could expand the interpretation of employment discrimination to include matters like parental leave, pregnancy accommodations, and gender identity protections. Businesses would need to ensure that their employment policies not only prevent discrimination but actively promote gender equality.

2. Education

In education, the ERA would bolster efforts to ensure equal opportunities for all genders in public and private educational institutions. This could affect admissions policies, scholarship programs, and educational activities, ensuring they are free from gender biases.

The amendment could also have significant implications for sex-based discrimination in schools, such as in athletics and STEM (Science, Technology, Engineering, and Mathematics) education, where traditionally one gender might be underrepresented. Title IX, which currently prohibits sex discrimination in federally funded education, would be reinforced by the ERA, potentially leading to more rigorous enforcement and broader applications of its provisions.

3. Access to Services

The ERA would likely influence the provision of services in both the public and private sectors, requiring that all persons have equal access to government and private sector services without discrimination based on sex. This could impact a range of services including healthcare, where women’s health issues have sometimes received less attention and funding compared to men’s health.

In terms of reproductive rights, the ERA could provide a firmer constitutional grounding for protecting access to reproductive health services, countering recent trends toward restricting these rights in various states. Additionally, services related to domestic violence and sexual assault might see improved support and funding, recognizing these issues as critical components of gender equality.

Senator Kirsten Gillibrand’s Pivotal Role in Advancing the Equal Rights Amendment

Senator Kirsten Gillibrand of New York has emerged as a central figure in pushing for the amendment’s recognition and certification. Understanding the importance of executive backing, Gillibrand worked to directly engage President Biden and other key figures within the White House to build a robust argument supporting the validity of the ERA’s ratification despite the elapsed deadline.

In a Dec. op-ed, Gillibrand said, “With Republicans set to take unified control of government, Americans are facing the further degradation of reproductive freedom.

“Fortunately, Mr. Biden has the power to enshrine reproductive rights in the Constitution right now. He can direct the national archivist to certify and publish the Equal Rights Amendment. This would mean that the amendment has been officially ratified and that the archivist has declared it part of the Constitution.

“The amendment is concise: ‘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.’

“The amendment would make discrimination on the basis of sex — like restrictions on reproductive care that single out women — unconstitutional, including, in my view, abortion. We’ve seen the potential of this approach; courts in several states with E.R.A.s have cited those amendments in striking down state prohibitions on Medicaid-funded abortion care.”