Lawmakers Urge President Biden to Finalize Equal Rights Amendment Before Transition

By Stacy M. Brown

As President Joe Biden’s tenure ends, a coalition of more than 100 House Democrats has urged the administration to ratify and publish the Equal Rights Amendment (ERA) as the 28th amendment to the United States Constitution.

The lawmakers claim that Biden’s actions will advance gender equality and defend constitutional rights, particularly as the country prepares for a new government that is openly hostile to reproductive freedom and LGBTQIA+ rights. 

In a letter led by Reps. Cori Bush (D-Mo.), Ayanna Pressley (D-Mass.), and Jennifer McClellan (D-Va.), the lawmakers urged Biden to direct the archivist of the United States to certify the ERA. 

“Solidifying your legacy on equal rights with a final action on the ERA would be a defining moment for the historic Biden-Harris administration and your presidency,” the letter stated.

The ERA, which guarantees 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,” was passed by Congress in 1972 with bipartisan support. The House approved it with a 354-24 vote, and the Senate approved it with an 84-8 vote. 

The amendment met its ratification threshold in 2020 when Virginia became the 38th state to approve it, fulfilling the requirement for three-fourths of state legislatures to ratify it.

Despite meeting the requirements outlined in Article V of the Constitution, the ERA still needs to be certified. The National Archives and Records Administration (NARA), tasked with certifying and publishing amendments once ratified, has yet to take action due to a 2020 opinion issued by the Trump administration’s Office of Legal Counsel (OLC). The opinion argued that because the ERA did not meet Congress’s 1982 deadline, it “expired and is no longer pending before the states.”

Federal law (1 U.S.C. § 106b) mandates the archivist to certify an amendment once three-fourths of states have ratified it. Lawmakers contend that the Trump-era opinion should not obstruct the certification process and called on Biden to issue a proclamation recognizing the ERA.

“While there are federal laws that protect against sex discrimination, these protections are not explicitly enshrined in the Constitution,” the letter noted. “Adding the ERA to the Constitution would establish an unambiguous guarantee that sex-based discrimination is unconstitutional.”

Bush warned about possible detrimental next steps as the second Trump administration looms near.

 “We were hoping to be progressing forward on gender equality and women’s rights, but we are going backward. At this point, we have an avalanche of destruction coming our way,” Bush said.

The Biden administration has previously expressed support for the ERA. In his August 23, 2024, proclamation on Women’s Equality Day, Biden called Congress to recognize the amendment’s ratification. ERA supporters insist that no further action from Congress is needed, as the amendment has already met the constitutional requirements.

Polling indicates broad public support for the ERA. A 2020 Pew Research Center poll found that 78% of Americans believe the amendment should be part of the Constitution. 

Recent state-level votes further reflect this support, such as Nevada and New York, where they enshrined state-level ERAs into their constitutions by wide margins.

“With a hostile administration on its way to strip us of our freedoms, we must do everything to address this injustice and enshrine the ERA,” Pressley said.

By certifying the ERA, lawmakers believe that legal safeguards against sex discrimination would strengthen. They said that would help address concerns that include salary discrepancies, employment injustices, and reproductive rights. The legislators believe that the move is essential to preserving advancement of gender equality and shielding weaker rights from political changes and court interpretations. 

“By directing the archivist to publish the ERA, you will leave an indelible mark on the history of this nation, demonstrating once again that your legacy is one of expanding rights, protecting freedoms, and securing a more inclusive future for all Americans,” the letter concluded.

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