Democrats Urge Biden to Ratify Equal Rights Amendment Amid Legal Hurdles

More than 120 House Democrats are urging President Joe Biden to finalize the process of incorporating the Equal Rights Amendment (ERA) into the U.S. Constitution.

This initiative, led by outgoing Rep. Cori Bush (D-Mo.) and Rep. Ayanna Pressley (D-Mass.), calls on the outgoing president to instruct the national archivist to recognize the ERA—an amendment proposed in 1923 aimed at providing specific constitutional protections based on sex—as ratified, despite uncertainties surrounding the legality of such a decision.

They framed this effort as a reaction to President-elect Donald Trump’s upcoming second term, accusing him of being “openly hostile to reproductive freedom, healthcare access, and the rights of LGBTQIA+ individuals.”

This action could have significant repercussions for U.S. legal matters; however, any attempt by Biden to fulfill this request would likely encounter considerable pushback from conservative organizations and the incoming Trump administration, both of which would advocate for clear definitions concerning sex and gender preference issues.

For supporters, the ERA represents a long-overdue formal acknowledgment of sexual equality.

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“By directing the Archivist to publish the ERA, you will leave an indelible mark on the history of this nation, showing once more that your legacy is one of broadening rights, safeguarding freedoms, and creating a more inclusive future for all Americans,” Bush and Pressley emphasized.

“We urge you to take this pivotal and transformative step towards fulfilling the promise of equality for every individual in the United States.”

Conversely, critics warn that the ERA could lead to extensive and unpredictable alterations in U.S. law depending on how the courts interpret its succinct text, often citing the court’s broad interpretations of the 14th Amendment that have significantly transformed American law.

Several Republicans have raised alarms that the ERA could necessitate the inclusion of transgender-identifying athletes in women’s sports, or trigger other unforeseen consequences stemming from the rise of transgender concepts in American society.

If Biden were to comply with the Democrats’ appeal, it would likely provoke a torrent of litigation, and determining a definitive outcome could take months.

History of the ERA

The letter represents the latest chapter in a debate that has persisted for over a century.

Initially proposed three years after the ratification of the 19th Amendment in 1920, which granted women the right to vote, the ERA’s core clause 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.”

Additional provisions empower the federal government to enforce this clause, becoming effective two years after ratification.

First introduced in 1923, the ERA stalled in committee, seemingly destined for the annals of failed constitutional reforms.

Yet, in 1972, both houses of Congress revived and passed the ERA, granting a seven-year window for ratification. By the 1979 cutoff, 35 states had ratified it, still three short of the 38 needed for constitutional enshrinement.

Congress later extended the deadline to 1982, but no further states agreed to ratify within that timeframe.

In more recent years, three state legislatures—Nevada, Illinois, and Virginia—canvassed their support for ratification between 2017 and 2020.

This implies that the ERA now possesses the requisite backing to be considered the 28th Amendment. However, these final ratifications occurred well after the 1982 deadline set by Congress.

Legal Uncertainty

A key legal question centers around whether the 1982 deadline retains relevance. Bush and the supporting Democrats assert that it does not.

The amendment process outlined in the Constitution is intentionally stringent: a proposed amendment must garner the approval of two-thirds of both congressional chambers, or two-thirds of the states—34 in total—must call for a constitutional convention. Subsequently, three-fourths of the states—38 currently—must endorse it for it to be included in the Constitution.

“With its endorsement by 38 states, the ERA has met all constitutional requirements for adoption,” Bush declared.

In light of this, Bush and her colleagues hope Biden will instruct the National Archives to publish the ERA as the 28th Amendment to the Constitution. This action is seen as an administrative one, marking the completion of the process.

However, the National Archives have previously declined to proceed with this.

After Virginia ratified the ERA in 2020—marking the 38th state to support the amendment—the Trump administration issued a memo arguing that Virginia’s ratification was moot due to the 1982 deadline having elapsed.

Furthermore, the memo indicated that several states had sought to rescind their ratification, including Nebraska, Tennessee, Idaho, Kentucky, and South Dakota, all attempting to retract their support before the original 1979 deadline.

The then-Archivist David Ferriero adhered to this memo, resulting in the ERA not being published within the Constitution.

Since then, North Dakota has also moved to withdraw its ratification, claiming it was only valid through the original 1979 deadline.

Both of these critical issues—whether the deadline was constitutionally binding and whether states can revoke their ratification before adoption—would almost certainly be subjects of extensive litigation if Biden requests the amendment be incorporated into the Constitution.

If Biden heeded the request, and Archivist Colleen Joy Shogan published the ERA as the 28th Amendment, it would, at least pending litigation, have accomplished the final administrative requirement for constitutional inclusion.

Ultimately, it would likely be up to the Supreme Court to resolve key questions regarding the case, including whether the ERA constitutes a legitimate part of the Constitution.