The 28th Amendment? Explaining the Fight for the Equal Rights Amendment

Modern supporters of the ERA stand at a press conference in favor of the amendment’s passage in 2018. Source: Tom Williams / CQ-Roll Call, Inc via Getty Images

On January 17, 2025, with just 72 hours left in his term as president, Joe Biden declared that the Equal Rights Amendment (ERA) was the “law of the land.” He then instructed the National Archivist to publish it as the 28th Amendment to the United States Constitution in what would be the first change to the document since the early 1990s, and the first to expand the rights of Americans since the early 1970s when the voting age was lowered from 21 to 18. 

The core of the Equal Rights Amendment’s text is simple. It 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.”

It was first introduced in Congress in 1923 but received little support. Riding the second wave of feminism that swept the United States beginning in the 1960s, the amendment gained serious traction, and within a year of its reintroduction in Congress in 1971, it had been approved by the necessary two-thirds of the US House of Representatives and the Senate. To become a constitutional amendment, the ERA had to be ratified by three-fourths of all states, a total of 38 states.

However, during the state ratification process, the ERA began to lose momentum as figures like Phyllis Schlafly led the influential “STOP ERA movement,” which proliferated the idea that ratifying the amendment would lead to gender-neutral bathrooms, same-sex marriage, and women in combat. Conservatives deemed all three of these ideas intolerable. Even though the amendment was initially supported by Republican Richard Nixon, many in the GOP turned against ratifying the ERA. 

When Congress passed the resolution supporting the amendment, it set a 7-year deadline for states to ratify it. If the amendment wasn't ratified by then, it would need to once again receive Congressional approval. The deadline was later extended but ultimately expired on June 30, 1982, without the mandatory number of states ratifying it. By that point, only 35 states had, falling 3 short. Additionally, five states —Tennessee, Kentucky, South Dakota, Nebraska, and Idaho— had shifted to the right during the late 1970s and chose to rescind their earlier ratifications, making the situation even bleaker. 

Despite this, the ERA could be the 28th Amendment to the Constitution. How did we get here? What does this mean? Let’s demystify it. 

How Did the Amendment Receive the Necessary Ratifications?

In the second half of the 2010s, there was a renewed push to ratify the ERA, largely driven by reactions to the first Trump presidency, which many saw as a backlash against Fourth Wave feminism. By 2020, an additional 3 states, Nevada, Illinois, and Virginia, had ratified the Equal Rights Amendment. This meant that 38 states, the requisite number, had ratified the ERA at some point in time. 

Hasn’t the Time Limit Set by Congress Expired?

Yes. The time limit initially set by Congress expired nearly 43 years ago. However, there are serious legal questions as to whether Congress can impose time limits on the ratification of constitutional amendments. Article V of the Constitution, which outlines the amendment process, simply states that a proposed amendment becomes a part of the supreme law of the land when “two-thirds of both houses [of Congress] deem it necessary.” No part outright states that Congress has the power to solely set the parameters for the amendment process. Such a proposal would, in many ways, violate the Federalist principles set out by the Constitution by creating an imbalance in the relationship between the states and the federal government.

The issue arises with a 1917 Supreme Court ruling in the case Dillon v. Gloss, which similarly related to Congressionally imposed time limits on the ratification of the 18th Amendment, which ushered in the era of prohibition. In the case, the court established that Congress did indeed have an implied power to set such time limits. However, this has been recently contradicted by the American Bar Association, which concluded in 2024 that the ERA could be published with the addition of the post-1982 ratifications as they believed the court erred in their ruling and Congress did not have such a power. If ever published, the question will almost certainly go into litigation and the amendment’s future would depend on it. 

What About the States that Rescinded Their Ratification? 

If the amendment rescissions are taken into account, then only 32 states have currently ratified the amendment (North Dakota rescinded its ratification after the original 1982 deadline). However, this may not matter as Article V of the Constitution states that it simply needs to be ratified by three-fourths of state legislatures. It does not say whether all of those ratifications need to be concurrent or if states even have the power to rescind their ratifications at all.

If states were given the power to rescind their ratifications, it could create a risky precedent. The already challenging process of amending the Constitution could become even harder, as amendments might be endlessly revised or blocked for political reasons. This would make it more difficult for the American people to change the laws that govern them, potentially leaving the Constitution, written in 1787, frozen in time and unable to adapt to modern needs. 

What Would the ERA Change? 

The passage of the ERA as the 28th Amendment would not have an enormously consequential effect on the modern American legal landscape. The provisions of the ERA are already held by courts to be enshrined in the equal protection clause of the 14th Amendment. This clause has already been used to grant legal equality on the basis of sex for several high-profile issues such as access to government benefits, public education, and even marriage equality. 

However, the text of the 14th Amendment does not state anything about gender or sex and has merely been interpreted by the courts to include such protections. In an era of increasingly radical conservative courts that have been unafraid to overturn decades-old precedents, the ERA’s clear and definitive protection of all based on sex may prove to be invaluable. If the courts were to reverse their current interpretation, the federal and state governments would have free reign to pass legislation that explicitly discriminates against women. 

Several Democratic lawmakers, such as New York Senator Kirsten Gillibrand, have also suggested that the ERA could be used to protect abortion rights in a post-Roe world. However, the legal basis for such an interpretation is murky at best and misguided at worst. Abortion restrictions are not necessarily levied on the basis of a person’s sex but rather affect exclusively biological women on an incidental basis. 

What’s Next? 

No one is certain of what comes next for the ERA. This is an unprecedented situation with several complicating factors that make the road to ratification look more like a minefield. The National Archivist has already stated that it will not become the 28th Amendment due to the 1982 deadline. But if it were to ever be pushed through, the issue will likely go to the Supreme Court where the 6-3 conservative majority is unlikely to issue a favorable ruling for ERA supporters, leaving the amendment dead in the water. 

Although the ERA's future remains uncertain, its support from the Biden Administration stands as a symbol of the ongoing fight for gender equality in the United States. It should be seen as a triumph for women's rights activists nationwide and as part of the legacy of pioneering figures like Susan B. Anthony, Shirley Chisholm, and Ruth Bader Ginsburg, who fought for such equality. 

The passage of this amendment isn’t just a final victory for a movement that peaked in popularity decades ago. It represents a societal shift that goes beyond the law. The ERA would help usher in an era of greater inclusion and equality where barriers to success are not determined by gender but by talent, effort, and ambition. In this sense, the ERA is true to the spirit of the American project: a country striving to ensure that all people are treated equally, regardless of the barriers society once placed before them. I believe few pursuits are more reflective of our framers’ goals to create a more perfect union.