Before leaving office, former President Joe Biden declared the Equal Rights Amendment (ERA) “the law of the land.” The 28th Amendment, which 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,” is operative, according to ERA advocates.
“Now that Biden acknowledged the ERA, the next steps are celebration and implementation,” says Kati Hornung, cofounder and executive director of VoteEquality!, a nonpartisan group promoting equal rights for all.
The American Bar Association passed a resolution in October 2024 affirming the 28th Amendment achieved every requirement for ratification under Article V of the Constitution. ABA’s resolution “urges federal, state, local, territorial, and tribal governments to support implementation of the Equal Rights Amendment” and “urges all bar associations and the legal community as a whole to support implementation of the ERA.”
However, there are skeptics. “When Congress proposed the ERA in 1972, they made it a conditional proposal to add language to the Constitution, if and only if, it was ratified within seven years,” says Stephen E. Sachs, the Antonin Scalia Professor of Law at Harvard Law School. The original deadline for ratification was 1979 but Congress voted to extend that to 1982. Virginia became the 38th state to ratify the ERA in January 2020.
“If people are supportive of it, they need to go back to the beginning, they should propose it again and we’ll see if the country wants to ratify it,” Sachs says.
Despite skepticism by opponents, ERA advocates say they are moving forward with implementation. Federal, state, and local jurisdictions should begin reviewing their laws for sexism and sexist language because any statute contrary to the ERA would be unconstitutional. Meanwhile, plaintiffs can cite the 28th Amendment in discrimination cases.
Sen. Kirsten Gillibrand (D-N.Y.), an outspoken advocate for the ERA, is working on a bill that would require a review of federal laws to eliminate any sexism or sexist language. “If this administration wants to go after women’s rights, we’ll see you in court,” says Sen. Gillibrand.
State ERAs could provide more protection
Yet, for there to be broad-based acceptance of the ERA, advocates will need politicians and judges to endorse this idea, says Ting Ting Cheng, director of the ERA project at Columbia Law School Center for Gender and Sexuality Law. Given all the upheaval happening in Washington, D.C., Cheng admits the ERA might not gain any additional political champions at the moment.
But, Cheng says, that doesn’t mean the ERA isn’t the 28th Amendment. “No executive order will undo the ratification of 38 states,” she says. Executive orders cannot override the United States Constitution, federal statutes, or established legal precedent.
Instead, Cheng believes there may be more opportunity for success in the current political climate at the state level because 28 states have their own ERAs with language that is more inclusive and expansive than the language in the 28th Amendment. Most state ERAs include a broader definition of sex to include sexual orientation, gender identity, or expression, she says. For instance, New York State recently passed an ERA that states, “No person shall, because of race, color, ethnicity, national origin, age, disability, creed [or], religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy, be subjected to any discrimination in [his or her] their civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state, pursuant to law.”
State ERAs have been used to challenge and overturn abortion restrictions. In Connecticut, Pennsylvania, and New Mexico, state ERAs were used to protect public funding for abortion. In addition to protecting women, state ERAs can be used to push against federal policies targeting trans youth healthcare and immigration, Cheng says.
“People are not thinking creatively about state ERAs,” Cheng says. The passage of these state ERAs are not under dispute and, in many cases, they can provide more protections than the federal ERA, she says. “States could become gender justice laboratories,” she adds.
States are finding their statues are biased against women
Several states without ERAs, including Arizona and North Carolina, have completed reviews of their state statutes to find potentially outdated or discriminatory language in anticipation of the 28th Amendment’s enactment. ERA Task Force AZ issued a 652-page report Equality for All that proposes changes to state statutes to comply with the federal ERA. Many suggested changes include adopting neutral terms such as “person” instead of masculine terms such as “men” or “chairman,” says Dianne Post, cochair of ERA Task Force AZ. “The most serious problems we found were in criminal law, in healthcare related to abortion, and family law,” she says. A copy of the report was sent to every state legislator but, so far, none of the proposed changes have been made, Post says. She anticipates several bills will be introduced this legislative session.
Meanwhile in North Carolina, the ERA-NC Alliance conducted a review of its state statutes and found more than 21,000 gender specific terms that needed further review, according to Audrey Muck, the alliance’s copresident. One of the most concerning is the term “femme coverture, ”which means a married woman has no independent legal rights and cannot enter contracts or own property without her husband’s permission, and is still in the state’s code of law. The Alliance brought that issue to the North Carolina General Statutes Commission and the Commission is seeking a technical correction.
“With or without the ERA, any state would want to make sure their statutes apply equally to men and women,” says Greg McConnell, chief pro bono officer at Winston & Strawn LLP, the law firm that helped the ERA-NC Alliance review its state statutes.
