President Joe Biden announced Friday that the Equal Rights Amendment should be considered a ratified addition to the U.S. Constitution, supporting efforts to enshrine the amendment more than a century after the guarantee of gender equality was first proposed.
“It is long past time to recognize the will of the American people,” Biden said.
“Consistent with my oath and duty to the Constitution and the country, I affirm what I believe and what three-quarters of the states have ratified: The 28th Amendment is the law of the land and guarantees to all Americans, without regard, equal rights and the law protection of their gender.
It was unclear what practical impact the outgoing Democratic president’s comments could have just days before he is replaced by Republican Donald Trump.
Presidents play no role in the change process. And the head of the National Archives previously said the amendment could not be confirmed because it was not ratified before a deadline set by Congress.
First proposed more than a century ago, the ERA declares that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Its proponents say it is necessary to protect against sexual discrimination and that it would help achieve equal pay, while opponents argue that the original timeline for inclusion in the U.S. Constitution has expired and that the amendment is no longer necessary.
Here’s an overview of what the ERA is, how long it’s been discussed, and what Biden’s action means:
What is the Equal Rights Amendment?
The ERA is a 1970s ban on gender discrimination that legally guarantees men and women equal rights. Because it is a constitutional amendment, it must be ratified by three-quarters of the states before it is incorporated into the U.S. Constitution.
How long has the push to codify the ERA been going on?
There have been debates about the ERA since its initial approval by Congress.
The ERA was originally sent to the states for ratification in 1972, and Congress set a deadline of 1979 for three-quarters of state legislatures to ratify it. This deadline was then extended to 1982.
But it wasn’t until nearly 40 years later, in 2020, that Virginia lawmakers voted to ratify the amendment, meaning the required 38 states had ratified it.
Congress tried to extend the deadline to ratify the amendment in 2023, but the measure failed to reach the required 60-vote threshold in the Senate.
What role does the archivist play in ERA certification?
The Director of the National Archives is responsible for certifying and publishing new amendments once they reach the required ratification threshold.
Last month, the Archivist and Deputy Archivist of the United States said in a rare joint statement that the ERA could not be certified without further action by Congress or the courts, and said any company would have to change the deadline to have the change certified to consider.
A senior Biden administration official, speaking on condition of anonymity to discuss the White House plans, said the Democratic president did not direct the archivist to confirm the change.
Does Biden’s approach to the ERA change anything?
Not really. Biden’s move is largely symbolic – and it’s unclear whether his statement will have any impact. Presidents play no role in the change process.
And the head of the National Archives said the amendment could not be confirmed because it was not ratified before a deadline set by Congress.
Democrats have pushed Biden to act unilaterally on ratifying the law before he leaves office next week, and some members of Congress had planned to gather at the National Archives on Friday.
Senator Kirsten Gillibrand, who has led Senate Democrats’ efforts, has insisted the archivist’s analysis is flawed.
Gillibrand previously said Colleen Shogan “unlawfully interfered with a clear constitutional process even though her role is purely ministerial in nature” and encouraged Biden to certify the ERA despite Shogan’s objections.
