Amidst the switch in America’s leadership, did you happen to hear about the 28th Amendment? The United States constitution currently has 27 Amendments. For over a century, people have been fighting for equal rights within the constitution. Crazy to think in the almost 250 years our country has been around, we still don’t have concrete equal rights according to our constitution. On January 15, 2020 The Equal Rights Act/Amendment (ERA) was officially ratified in the state of Virginia, giving this act the 38th state it needed to become an amendment in our constitution. But, until a couple of days ago, many had no idea what it is, where it came from, and the big question of is it an amendment? 

The text of the Equal Rights Amendment (ERA) states 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” and further that “the Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”

The Beginning

Let’s go back to 1923 America during the women’s suffrage movement. The 19th Amendment had finally been ratified by the United States and women in America felt as empowered as ever. According to the Brennan Center, two women, Alice Paul and Crystal Eastman wrote up the bill that was introduced to Congress later that year. Flash forward to the 1970s, after sitting on the back burner for 50 year, the ERA was brought back up in Congress after push back from Representatives Martha Griffiths (D) from Missouri and Shirley Chisholm (D) from New York to make this a top priority. In March 1972, the amendment passed both chambers of Congress with bipartisan support far exceeding the two-thirds majorities required by the Constitution. Congress promptly sent the proposed amendment to the states for ratification with a seven-year deadline.

The Fight to Ratification

But its been 53 years since 1972, so what happened? To understand what did, you have to understand the ratification of an amendment process. After Congress votes on an amendment it is sent to the states. They get to decided if they want to ratify it or not. According to the Oxford Dictionary ratify can be defined as, “ to sign or give formal consent to (a treaty, contract, or agreement), making it officially valid” or in easy words “to accept”. 38 out of the 50 states are needed to ratify an Amendment for the constitution. Within the year, 30 states had ratified it, with Iowa being one of the first to sign on March 24, 1972. But everything was slowed down by activists who were against the amendment and by 1977, only 35 states had ratified it. Congress voted to extend the process by 3 years. In 1982, following the expiration of the extended deadline, most activists and lawmakers accepted the ERA’s defeat. 

In the four decades since, courts and legislatures have realized the need for the ERA or something similar. Have you ever heard of Ruth Bader Ginsberg? She served on the Supreme Court from August 10, 1993 to September 18, 2020 when she passed. She was the second women and the first ever Jewish person to serve on the Supreme Court. We have to give RBG credit for much more than just bring back the ERA. At the time Ginsberg was the founding director of the American Civil Liberty Union (ACLU) Women’s Rights Project, which found success in arguing for a the theory of gender equality under the 14th Amendment’s Equal Protection Clause. In the event of “legislative default,” Justice Ginsburg wrote, the ERA would provide “an unassailable basis for applying the bedrock principle: All men and women are guaranteed by the Constitution equal justice under law.”

Modern Day

In recent times, since the beginning of the #MeToo movement, the Equal Rights Act has gained traction once again. In 2017, Nevada became the first state to ratify it since 1977 spearheaded by State Senator Pat Spearman. A year later, Illinois state legislature followed too.  “This is our generation’s chance to correct a long standing wrong,” argued Illinois State Representative Steven Andersson (Republican). With Virgina’s ratification in 2020, ERA has checked the states it needs to become ratified under Article 5.

When Virginia ratified the ERA in 2020, instead of prompt publication, a litany of legal battles ensued. Opponents of the amendment’s adoption argue that the amendment is null because the seven-year time limit Congress that expired in the 1970s. In January 2020, the Trump administration U.S. Department of Justice’s Office of Legal Counsel (OLC) issued a memorandum to the National Archives and Records Administration on the ERA, saying that the amendment’s ratifying deadline had expired and that the amendment is “no longer pending before the states.” The memo effectively blocked the archivist of the United States from adding the ERA to the Constitution and concluded that the only path to ratification for the ERA was to reintroduce it and begin the entire process from the start. However, in 2022 the Biden Administration OLC released a new memo on the ERA’s status explaining that the Trump administration-era memo was not supported by the Constitution and needed to be updated.

Since 2017, when Nevada ratified the ERA, modern efforts to ratify have emerged in Arizona, Georgia, Florida, Louisiana, Missouri, North Carolina, South Carolina, and Utah. Five states—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—voted to rescind their ratification in the 1970s, which has raised legal questions. The 118th Congress established the first-ever Congressional Caucus for the Equal Rights Amendment (ERA), and both the House and Senate have introduced resolutions to make the ERA the 28th Amendment to the U.S. Constitution. House Joint Resolution 25 and Senate Joint Resolution 4 aim to remove the deadline for the ERA’s ratification. In April 2023, S.J. Res. 4 was brought to the Senate floor for a vote and did receive votes, but in a procedural move, the Senate Majority Leader changed his vote to keep the issue open for future consideration. 

Current Logistics

Additionally, two related resolutions—H.J. Res. 82 and S.J. Res. 39—declare that the ERA has already been validly ratified and is enforceable, instructing the Archivist of the United States to certify and publish it. While Article V of the Constitution doesn’t require further action from Congress, these resolutions could help clarify its position on the matter and resolve any lingering debates about the time limit. Any vote on the ERA’s time limit, which was included in the 1972 ERA bill, only requires a simple majority.

Before Biden left the White House, that the ERA was “the law of the land”, but that has no legal standing. This is because presidents cannot decide what is in the constitution, its up to a majority vote from the states. The amendment would need published, which is the job of our archivist Dr. Collen Shogan and no president can tell her to publish anything. Though a senior administration official said that the archivist’s role is “purely ministerial” in nature, meaning that the archivist is required to publish the amendment once it is ratified. Why it hasn’t been? Accordion to the National Archives communications staff the ERA “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.” 

Right now, there has to be hope that Dr. Collen Shogan, Congress, and our Supreme Court will work out a decision to publish the ERA in our constitution. Regardless of the way to finalization, there needs to be more recognition on the need for equal rights in the United States.

References: https://www.americanprogress.org/article/what-comes-next-for-the-equal-rights-amendment/
https://www.brennancenter.org/our-work/research-reports/equal-rights-amendment-explained
https://www.npr.org/2025/01/17/nx-s1-5264378/biden-era-national-archivist-constitution
https://www.whitehouse.gov/presidential-actions/2025/01/ending-illegal-discrimination-and-restoring-merit-based-opportunity/