About the Equal Rights Amendment
The Equal Rights Amendment (ERA) to the United States Constitution would prohibit discrimination on the basis of sex in all fifty states and the United States:
Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Brief History of the ERA
The ERA was first introduced in Congress in 1923 and then again in every Congressional session until it first passed in the House on October 12, 1971 and then the Senate on March 22, 1972.
Every proposed Constitutional amendment must pass by a two-thirds vote in both the House and the Senate, after which it is sent to the states for ratification. To formally ratify and include a new amendment in the Constitution, it must be ratified by three-fourths –38– of the states. Hawaii was the first state to ratify the ERA, less than an hour after it passed out of Congress. Other states quickly followed. By January 1977, 35 states had ratified the ERA. Virginia became the 38th state to ratify the ERA in 2020.
Need for the ERA
The ERA is not symbolic: the ERA would have a real positive and consequential impact.
For example, before the 2010 Affordable Care Act (ACA), insurance companies regularly discriminated on the basis of sex in premiums and benefits. Insurance rates based on a binary gender system do not account for trans and non-binary people, cutting off access to health insurance entirely. The ACA, however, is vulnerable to being repealed with a simple majority vote in both houses of Congress. The loss of ACA provisions would not be possible if the ERA was recognized as part of the Constitution.
The drive to ratify the ERA in the 1970s and 1980s helped to build a vigorous women’s rights movement that made impressive gains for women in education and athletics, employment and credit, reproductive health and rights. These gains came under constant attack. The ERA enshrined in the Constitution would prohibit discrimination on the basis of sex by both the federal government and the states.
Status of the ERA
The ERA has been ratified by 38 states and now Congress has the responsibility to recognize and place the ERA in the Constitution. Neither the courts nor the President can “sign” or enact the ERA. It is clear that the President and Governors have no role in the amendment process. Congress and state legislatures together have the power to amend the US Constitution. A resolution establishing the ratification of the ERA has been reintroduced with dozens of sponsors in both houses of Congress in every session since 1982.
A joint resolution was introduced in both houses of Congress in January 2023 by Rep. Ayanna Pressley (D-Mass.) and Sen. Ben Cardin (D-Md.) to recognize that the amendment must be placed in the Constitution. The same language is used in both the House and Senate resolution:
“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that notwithstanding any time limit contained in House Joint Resolution 208, 92d Congress, as agreed to in the Senate on March 22, 1972, the article of amendment proposed to the States in that joint resolution is valid to all intents and purposes as part of the United States Constitution having been ratified by the legislatures of three fourths of the several States.”
This resolution needs to be passed by both houses of Congress, which is the final step in the ratification process. Lawmakers and activists continue to build movement towards passing state-level ERAs across the nation, with Nevada having passed an expansive state ERA in 2023, and New York passing an inclusively worded ERA in 2024. State-level ERAs had already been ratified in 22 other states. There are ongoing campaigns in Minnesota and Maine to get a state-level ERA on the ballot in those states.
The President has no role in the ratification process. However, in one of his final acts as President, Joe Biden released this statement affirming his belief that the Equal Rights Amendment has, in fact, been ratified:
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.
On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment. The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.
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.
The joint resolution to establish the ratification of the Equal Rights Amendment by removing the arbitrary ratification deadline has been reintroduced in the current 119th Congress again by Rep. Ayanna Pressley in the House (H.J.Res.80) and by Sen. Lisa Murkowski in the Senate (S.J.Res.38).