As President Joe Biden’s term nears its end, Democratic lawmakers are intensifying calls for him to make one final push to ratify the Equal Rights Amendment—a constitutional amendment that would enshrine gender equality in the U.S. Constitution.
Sen. Kirsten Gillibrand of New York and outgoing Rep. Cori Bush of Missouri are at the forefront of this movement, and have urged Biden multiple times over several years to act before the clock runs out on his presidency.
According to a report by The Hill, Bush spoke passionately about the issue on Tuesday from outside the Capitol.
“The publication of the Equal Rights Amendment may be long overdue, but the stakes for gender equality have never been higher,” said Bush, cofounder with Rep. Ayanna Pressley, of the Congressional ERA Caucus. “Our bodies, our rights, our lives are on the line.”
Her message is urgent, echoing the concerns of many who fear that the progress made on women’s rights is vulnerable now that MAGA loyalists will be in charge of all three branches of government.
“We have fewer than 50 days before we lose the chance to guarantee equality for all Americans by codifying the Equal Rights Amendment in the Constitution,” said Gillibrand on X on Thursday.
In a recent interview, she also reiterated the significance of ratifying the ERA in light of increasing threats to reproductive rights. With Trump trying to stack his Cabinet with questionable candidates and fear of a national abortion ban due to Trump’s constant flip-flopping, Gillibrand pointed out that ratifying the ERA could serve as a safeguard for women’s reproductive freedoms.
“We’ve seen in several states that equal rights amendments have been used to secure reproductive rights in the courts,” she said in a Q&A with the National Journal. “In some states, courts have ruled that these amendments protect access to abortion as a fundamental right to health care.”
Gillibrand highlighted ongoing cases in Pennsylvania, Nevada, and Utah where state courts are deliberating the role of equal rights amendments in securing reproductive health care.
“In 2023, we should move forward to ratify the ERA with all due haste because if you look at the terrible things happening to women’s rights in this country, it’s clear that we must act,” said Majority Leader Senator Chuck Schumer in April 2023.
To make the ERA part of the Constitution, the U.S. needs 38 states—three-quarters of the 50 states—to ratify the amendment. In 2020, Virginia became the 38th state to do so, representing a historic milestone. This means the legal framework is now in place for the ERA to be published, but the final step still requires action from the national archivist. The national archivist’s job would be to publish the ERA in the Federal Register with certification of its ratification as the 28th Amendment.
However, that’s where Biden comes in.
Sen. Kirsten Gillibrand
Gillibrand and Bush argue that the time to act is now, given that the constitutional hurdles for the ERA have already been met. The archivist needs to know the president supports her signature. Gillibrand said she’s asking to go to the White House and convince Biden to let the archivist know that he approves of her signing it into the constitution.
“I’m asking for a meeting with President Biden to convince him that he has the legal basis to call on the national archivist to sign and publish the ERA,” she said. “At the end of the day, the national archivist has the responsibility to sign and publish this. The archivist would really like to know that this is something that President Biden supports before she acts, and so I’m asking President Biden to call on the archivist to sign and publish so she knows it is supported by the president, who has ultimate authority over the Office of Legal Counsel.”
Under Article V of the Constitution, an amendment must meet only two requirements for adoption: it must pass both the House and Senate by a two-thirds majority and be ratified by three-quarters of the states. And it’s true that both of these conditions were satisfied in the 1970s when the ERA was passed by Congress and subsequently ratified by the necessary states.
However, despite its widespread support and historical significance, the ERA has never been officially added to the Constitution.
“At the time, Virginia asked the archivist to sign and publish, and the archivist did not, because President Trump was president and he directed his Office of Legal Counsel [to issue] a memo saying that the 28th Amendment was not valid because it took too long,” she added, referring to the argument that when several states ratified the ERA, it was too late to count.
If signed into law, the ERA would ensure that gender equality is enshrined in the Constitution as an unequivocal right—a powerful tool to combat sex-based discrimination in all forms.
Current federal laws prohibiting sex discrimination lack a solid constitutional foundation, making them vulnerable to legal challenges. Ratifying the ERA would provide a clear, unshakable legal basis for gender equality, with a lasting safeguard against future attacks on women’s rights.
Biden’s next move could define his legacy—and help ensure that the progress made toward gender equality is solidified for future generations.
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