As one of his last acts before leaving office, President Joe Biden said on Friday he believes that the Equal Rights Amendment has been officially ratified and therefore is now part of the U.S. Constitution. It’s a welcome — if at the 11th hour — declaration that unfortunately is also nothing more than a symbolic gesture, because Biden cannot legally ask the archivist of the United States to certify and formally publish the amendment.
“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,” Biden said in a statement.
It’s been more than a century since the ERA was written by the women’s rights activist Alice Paul. The 1923 amendment says: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” In order for any constitutional amendment to pass, it requires two-thirds of state legislatures across the country to ratify it. In 1972, 49 years after Paul first wrote the ERA, Congress passed the amendment and sent it to the states. The original deadline for ratification was 1979, though it was later extended to 1982. By the time the deadline lapsed, the ERA had been ratified by only 35 out of the 38 states needed.
The issue remained stagnant until seven years ago, when Nevada’s state legislature approved it, followed by Illinois in 2018 and Virginia in 2020, bringing the total of required ratifications to 38 as required by law. At the time, Donald Trump’s Justice Department said the deadline for ratification had long passed. And even with Biden in the White House since 2021, no further action had been taken until recent weeks. As Biden prepared to leave office, pressure mounted on his administration to formally publish the amendment. In a memo obtained by CNN, New York senator Kirsten Gillibrand said the ERA would “codify women’s freedom and equality without needing anything from a bitterly divided and broken Congress.” She has also said that, by making discrimination on the basis of sex unconstitutional, the amendment could help overturn restrictions on reproductive health care, including abortion.
However, archivist of the United States Colleen Shogan and deputy archivist William J. Bosanko said in a joint statement last month that the ERA can’t be legally published unless either Congress or the courts take action to lift the 1982 deadline. Congressional Democrats had tried to pass legislation addressing this issue in 2023, a century after the ERA was first written, but the measure failed to meet the Senate’s 60-vote threshold.
So, where does the ERA go from here? It would be excellent if everyone agreed on Democrats’ argument that the Constitution says nothing about a timeline for ratification, and that Biden’s statement did indeed enshrine sex equality and pave the way to restore abortion and LGBTQ+ rights. But as Trump, the Republican-controlled Congress, and the conservative supermajority in the Supreme Court consolidate their control of Washington next week, that it’s unlikely to happen.