President Biden on Friday asserted that the Equal Rights Amendment (ERA), which prohibits discrimination on the basis of sex, is part of the Constitution, arguing it had met the criteria to be added as the 28th amendment.
Biden in a statement said that the ERA “is the law of the land” because it was passed by a two-thirds majority in Congress and three-quarters of the states have ratified it. But he stopped short of instructing the archivist to add the amendment to the Constitution, making it unclear what effect the outgoing president’s statement will have and likely inviting legal challenges.
“The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment,” Biden said in a statement. “I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.”
“It is long past time to recognize the will of the American people,” he added. “In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.”
A senior administration official said Biden was not going to direct the archivist to add it to the Constitution. The official said the archivist’s role was “purely ministerial,” and that she is “required to publish an amendment once it has been effectively ratified.”
Congress approved the Equal Rights Amendment in 1972. The congressional approval came with a seven-year deadline for states to sign onto the law as a constitutional amendment, but it wasn’t until 2020 that Virginia became the 38th state to ratify it.
The decadeslong delay is likely to be the subject of any legal challenge from opponents, though the Constitution does not make any reference to a deadline for states to ratify an amendment.
The Trump administration’s Justice Department issued an opinion in January 2020 saying no action should be taken to add the ERA to the Constitution, citing the lapsed deadline.
Biden’s announcement comes just days before he is set to leave office, with President-elect Trump returning for a second term.
Democratic lawmakers and advocates have for weeks urged Biden to take action on the amendment before leaving office. More than 120 House Democrats, led by former Rep. Cori Bush (Mo.) and Rep. Ayanna Pressley (Mass.), wrote a letter to the president in December calling on him to recognize it as a constitutional amendment.
The New York Times reported that Sen. Kirsten Gillibrand (D-N.Y.) has also been lobbying Biden to affirm the Equal Rights Amendment, arguing it would be a way to enshrine abortion rights after the Supreme Court struck down Roe v. Wade in 2022.
