On Friday, President Joe Biden made waves by declaring that the 28th Amendment, known as the Equal Rights Amendment (ERA), is now part of the U.S. Constitution.
The announcement was celebrated by advocates but immediately raised legal and procedural questions. While Biden’s statement signals support for gender equality, the future of the ERA remains uncertain as his declaration holds no formal legal weight.
What Is the 28th Amendment?
The 28th Amendment, first introduced as the Equal Rights Amendment in 1923, seeks to guarantee equal rights under the law regardless of sex. Despite its groundbreaking potential, the amendment has faced decades of legal and political roadblocks.
Congress passed the ERA in 1972, but constitutional amendments require ratification by 38 states. Virginia became the 38th state to ratify the ERA in 2020, but questions about expired deadlines and rescinded ratifications have complicated its path forward.
Biden’s Declaration and Its Implications
Biden’s statement framed the ERA as “the law of the land,” emphasizing its importance in protecting gender equality. While his announcement garnered praise, legal experts argue that the president has no authority to finalize constitutional amendments.
Under current law, it falls to the U.S. archivist to certify and publish amendments. However, Archivist Colleen Shogan has cited previous legal opinions stating the ERA cannot be certified due to expired deadlines.
Why the 28th Amendment Matters
Supporters of the ERA believe it is crucial for addressing systemic gender inequalities. For example, women in the U.S. still earn less than men for the same work.
According to the Department of Labor, women working full-time in 2023 earned just 84 cents for every dollar earned by men, with Black women earning only 69 cents for every dollar earned by white men.
Opponents, however, argue the ERA is unnecessary because existing laws already address gender discrimination. They also point to the expired ratification deadline as a reason to question its validity.
Legal Challenges Ahead
Legal experts predict that Biden’s declaration will face significant legal challenges. Opponents argue that Congress set a deadline for state ratifications, which passed in 1982. Additionally, five states have attempted to rescind their ratifications, further muddying the waters.
Biden’s administration, however, leans on the opinion of the American Bar Association, which states that no time limit was included in the ERA’s text and that states cannot rescind ratifications once made.
The Path Forward for the 28th Amendment
For the 28th Amendment to officially become law, courts will need to resolve disputes over deadlines and rescissions.
Meanwhile, advocates like Senator Kirsten Gillibrand continue to push for certification, arguing that the ERA could protect reproductive rights and ensure equal pay.
As Biden prepares to leave office, his statement on the ERA underscores his administration’s commitment to gender equality. However, without certification or a court ruling, the amendment’s future remains in limbo.
