The Unfinished Battle of the ERA

January 20th, 2025

Christina Yang

On January 17, 2025, just three days before President Joe Biden is set to leave the Oval Office, he declared the Equal Rights Amendment (ERA) the “law of the land,” thereby supporting the enshrinement of its principles of gender equality in the Constitution. The ERA states that "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”, and represents the largest advancement in women’s rights since the 19th amendment, which gave them the right to vote. Despite this symbolic act, the ERA is met with a myriad of legal complications and debates that may challenge its future legitimacy.

Historical Context

The ERA was proposed in 1923 by two leaders of the women’s suffrage movement---Alice Paul and Crystal Eastman---to achieve freedom from legal discrimination by sex. However, this amendment made little progress, despite being brought up in every single session of Congress. Throughout the 1970s, the ERA was met with pervasive criticism, with Phyllis Schlafly heading the STOP ERA movement and arguing that it would lead to gender-neutral bathrooms, same-sex marriage, and women in military combat. Nevertheless, the ERA started to gain momentum and passed in the House and Senate in 1972, but Congress placed a seven-year deadline on its ratification. After extending the deadline to 10 years, the ERA failed to meet the 38 votes required for ratification. Fast forward 40 years later, Virginia became the 38th state to ratify the amendment and momentously clear the threshold.

Legality

Perhaps the biggest issue with the ERA is that Biden’s statement does not put it in the Constitution. When Congress tried to lift the deadline and allow the amendment’s ratification in 2023, the measure didn’t meet the 60-vote requirement in the Senate. Proponents of the amendment argue that the deadline set by Congress can be ignored because the Constitution says nothing about the time frame for ratification. Additionally, there is an existing precedent for a president being able to declare an amendment into existence, starting with John Adams and the 11th Amendment. On the other hand, opponents argue that the ERA is dead due to the failed deadline and the fact that five states have since then rescinded their approval.

For the amendment to actually happen, it would need to be formally published and certified by the national archivist, Colleen Shogan. However, Shogan has publicly stated that she will not publish the ERA as the 28th amendment without the action of Congress to change the deadline due to "established legal, judicial and procedural decisions." Since then, a senior Biden administration official stated that Biden has not directed the archivist to certify the amendment and has not directed the Justice Department’s Office of Legal Counsel to withdraw its written opinion that the ERA expired years ago.

Future Implications

If the ERA were to be officially ratified, it would significantly empower the fight against gender discrimination (especially in the form of wage disparities), sexual harassment and violence, and also protect reproductive rights. This is because the ERA would create an explicit social framework to formally acknowledge persisting gender biases. Furthermore, the ERA would strengthen the fight for women in the legal sphere as it is currently difficult for them to win in court if they experience gender discrimination issues because it is not specifically prohibited by the Constitution.

Nonetheless, the ERA could’ve been far more effective if Biden had declared it a law at the beginning of his presidential term. However, this historic move still carries weight because it will prompt increased activism and awareness surrounding gender equality. Zakiya Thomas, the CEO of the ERA Coalition, has stated that if the future administration threatens these rights, they will have to respond to the rest of the country that will chant: “No, we have this right, this foundational right.”