How Can Equality Between Genders Still Be Up For Debate?
The Equal Rights Amendment is one of the most embattled pieces of legislation in the U.S. Supporters say it's just a question of publishing the damn thing.
A hundred and one years ago this month, Alice Paul and Crystal Eastman—two leaders in America’s fight for suffrage—introduced in Congress what would later become the Equal Rights Amendment (ERA), a proposed amendment to the U.S. Constitution that would explicitly prohibit sex discrimination.
In the decades that followed, the ERA became one of the most famous and embattled pieces of legislation in the U.S. And apparently, it still is.
You might be wondering—equality between genders? How is that still even up for debate? But to this day it still hasn’t been codified and adopted into law. And now, as Donald Trump’s second presidential term looms, calls have intensified to finally, finally, codify the ERA.
In 1971, decades after it had first been proposed, the House passed the ERA by a broad margin of 354 to 24. The following year, the Senate passed it by 84 to 8. And that’s when things got complicated. In order for the ERA to become law, it needed three-quarters of U.S. states—38 in total—to ratify it.
Thirty-five states ratified it, and then it kind of got stuck. Until finally Nevada ratified it in 2017, following Trump’s first presidential win. Illinois followed in 2018; and in January 2020, Virginia became the 38th state to ratify the amendment. But these final necessary ratifications took place well after the 1982 deadline that Congress had set when it approved the legislation.
The question now, it seems, is whether that deadline is relevant at all.
Dozens of House Democrats have signed a letter addressed to President Joe Biden urging him to convince the country’s archivist—officially, the head of the National Archives and Records Administration—to recognize the ratification and publish the amendment.
“We must continue our efforts to fully affirm and recognize the equality of rights for all people, regardless of sex, as part of our Constitution, a vital effort that has never been more urgent,” the letter states. “This action is essential as we prepare to transition to an administration that has been openly hostile to reproductive freedom, access to health care, and LGBTQIA+ rights,” it adds.
ERA supporters say it’s just a question of publishing the damn thing. Others say it’s not that simple.
After the Virginia ratification and during the first Trump administration, the archivist David Ferriero declined to certify it citing a memo by the Trump Justice Department’s Office of Legal Counsel (OLC) which noted the ERA did not meet that 1982 deadline and had therefore “expired and is no longer pending before the states.”
The OLC at the time also made the argument that Congress could not short-circuit the amendment process by extending the long-gone deadline. Instead, it said, the whole process would have to start from scratch and, as if that’s not complicated enough, it raised further questions over whether five states’ attempts to rescind their original ratifications were valid.
Either way, the countdown is on. Trump will assume office on Jan. 20, 2025. That’s 34 days away.
Emma Haslett
Monique El-Faizy
Josie Cox
