The Equal Rights Amendment (ERA), which would enshrine gender equality as a constitutional right in the United States, needs just one signature in order to pass.
In the last few weeks of 2024, more than a century after it was first proposed, ratification of the ERA has become a hotly debated topic.
Led by New York Senator Kirsten Gillibrand, and only one month after an election where half the country felt hopeful that they might see a woman elected to the nation’s highest office, many are redirecting that hopeful energy toward the ratification of the ERA. In November, a letter signed by 45 senators urged President Biden to take action before the new administration is sworn in on January 20th. Since then, a groundswell of support has taken shape around ratification.
“Most people think the amendment is already part of the Constitution,” says Gillibrand. “They’re shocked to find out it’s not.”
The ERA remains a powerful symbol of the ongoing fight for gender equality in the U.S. Many, like Gillibrand, remain steadfast in their belief that ratification would be a great way to preserve Biden’s legacy and to remind millions of women that progress is a fight that does not stop at every setback, even those that persevere for decades.
“I mentioned it to him when he was in New York at the Stonewall Inn commemoration celebration,” she says. “He was quite eager and thought it was a very good argument. If he acts now, this will go down in history as the greatest part of his legacy. It will matter.”
When suffragists Alice Paul and Crystal Eastman drafted the ERA in 1923, three years after women gained the right to vote via the 19th amendment, they argued that broader legal protections were needed to eliminate sex-based discrimination entirely.
Many associate the fight for the ERA with the women’s movement of the 1970’s. That’s because in 1970, Congresswoman Martha Griffiths introduced the amendment in House Joint Resolution 208. This happened during a time of heightened awareness and enthusiasm around combating gender inequality, rallying support for the ERA among a new generation.
HJ Res 208 included a deadline that the amendment would be valid only if ratified within seven years from the date of submission to the states.
It passed in the House on October 12, 1971, and in the Senate on March 22, 1972, with strong bipartisan support. In 1978, falling three states short of the majority needed, Congress extended the deadline by three more years. Still, not enough states had ratified the ERA by the time the second deadline came around.
In 2020, Virginia became the last state of the three fourths majority needed to ratify the amendment. At the time, three attorneys general from Virginia, Illinois and Nevada sued the national archivist, saying the original deadlines did not matter and it was the archivist’s constitutional duty to ratify the amendment.
Many still argue that the original deadline is irrelevant. Meanwhile, others wonder what difference ratifying the ERA would have today, in 2024, when women have already made so many strides in the workplace and in other areas of society?
Current proponents of the ERA point out that ratification would, “strengthen the ability of state prosecutors to win gender discrimination cases under Title IX, pregnancy discrimination laws, and the Violence Against Women Act.”
“The ERA would significantly benefit women in business by explicitly prohibiting sex-based discrimination in the workplace,” says Luminary founder and women’s workforce expert Cate Luzio. “This could potentially lead to greater opportunities for advancement, help close the gender pay gap and provide stronger legal grounds to combat issues like unequal pay, pregnancy discrimination, and sexual harassment, ultimately creating a more level playing field for women in the business world. This is a much needed tool to support gender equity and equality for all.”
While the ERA would put many of these economic protections in place, one of the biggest arguments for ratification is around women’s healthcare. Anti-abortion groups are strongly opposed because they see ratification as a way to expand abortion access. Pro-choice groups feel the same way.
“The Dobbs decision has radically shifted and upended equality because it said that women of reproductive years do not have a right to privacy,” says Gillibrand. “Red states have been implementing this lack of right to privacy by denying women the right to travel across state lines for health care, denying them the right to receive medicines in the mail, denying them the right to have private conversations about their health with their mothers on Facebook.”
“If you said that men of reproductive years don’t have a right to privacy, can’t cross state lines, can’t receive medicine in the mail and can’t have private conversations on social media, there’d be a revolution, correct?” Gillibrand continues. “If we had an Equal Rights Amendment, it would not only undermine Dobbs, it would stand for this notion that you cannot treat women differently because they’re women.”
Technically, the amendment is only one signature away from passing and becoming the 28th amendment to the United States Constitution. All President Biden has to do is tell the national archivist to sign it, a no-brainer to those in favor of ratification.
But when I interviewed Senator Gillibrand, it was on the heels of another setback to the ERA. On Tuesday, December 17th, national archivist Colleen Shogan, came out with an unprecedented announcement. She stated that the amendment “cannot be certified as part of the Constitution due to established legal, judicial and procedural decisions.”
Many constitutional scholars and lawyers support this move, and have been arguing that pushing for the ERA’s ratification is futile.
“Unfortunately, like with all legal issues, this issue carries a lot of nuance and complexity, beyond what you could put on a shirt or a sign,” says lawyer Daphne Delvaux who runs a platform and legal firm, The Mamattorney, devoted to women’s rights at work.
“In essence, asking Biden to publish the ERA is asking him to render unenforceable any and all abortion restrictions currently existing under state law,” Delvaux points out. “A constitutional right to women’s equality would support an argument that there are no laws legislating the male body’s reproductive system, and therefore, that these abortion bans violate the ERA. Unfortunately, this will have to go through a slow and painful legislative process.”
“Biden seems to be doing exactly what he’s always done,” she says. “Let the legislative process play out.”
Others, like Senator Gillibrand, think Shogan’s announcement was an extraordinary overstep.
“This decision was terribly misguided and inaccurate,” she says. “(Shogan) doesn’t have a legal role at all. She’s not in a position to analyze the state of the law and decide if she’s going to sign or publish based on the legal status.”
But, Gillibrand argues, there is still a path to ratification.
“We are still one signature away,” she insists, “Because if President Biden directs her to do it, she should do it. If she won’t do it after he directs her, President Biden should direct his Office of Legal Counsel to issue a memo stating exactly what the ABA (the American Bar Association) has just stated, that these deadlines don’t matter.”
Still, many argue that even if Biden were to instruct the archivist to sign the amendment, the victory might be short lived.
“I understand that we are all starving for bold, unapologetic action after this last election, and specifically for a courageous move in protection of women,” argues Delvaux. “I am also tired of seeing women’s rights be used as a political pawn that gets ping ponged back and forth.”
Many, like Delvaux, agree that there is no legal basis for ratification. There’s also a strong chance that if signed, the ERA would be challenged all the way up to the conservative Supreme Court, who would be likely to reverse it.
And if that happens?
“So we’ll argue it at the Supreme Court, we win, we lose, then we know,” says Gillibrand. “But we should not stop fighting for equality, regardless of who is president. I’m going to work very hard to flip the House, I’m going to work very hard to flip the Senate, and hopefully in the next few years, we’ll have a majority, and we can say again how these deadlines don’t matter, direct the archivist to sign and publish. We can keep going at this forever until it’s decided.”
Whether or not equality becomes enshrined into the U.S. Constitution before January 20th, the ongoing fight for equality will undoubtedly persist.