Enough states have ratified the ERA. Does that mean it's part of the Constitution?
Is the Equal Rights Amendment part of the U.S. Constitution? The answer is complicated.
On March 22, 1972, the U.S. Senate passed the Equal Rights Amendment, sending the measure to the states for ratification in order for it to become a part of the U.S. Constitution, the ultimate law of the land.
Thus far, 38 states have ratified the amendment, meeting the constitutional threshold (three-quarters) for it to be enshrined in the Constitution.
While most people might think of the Equal Rights Amendment as a relic of second-wave feminism − when Shirley Chisholm made a run for president, Gloria Steinem and Dorothy Pitman Hughes raised their fists in solidarity, and when women were rejecting traditional gender roles en masse − President Joe Biden, on one of his last days in office, called the Equal Rights Amendment "the law of the land."
So why isn't the Equal Rights Amendment included in published versions of the Constitution as our 28th Amendment?
Like most matters involving sex and gender, it's complicated.
Here's an FYI on the ERA.
What is the Equal Rights Amendment?
The original Equal Rights Amendment, first proposed as the Lucretia Mott Amendment in 1923, read as follows: "Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have the power to enforce this article by appropriate legislation."
In 1943, the wording was changed and the article renamed the Alice Paul Amendment. It reads:
Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.
Who first proposed the Equal Rights Amendment?
Alice Paul, a New Jersey native, Quaker and women's suffrage and rights activist, drafted the first version of the Equal Rights Amendment in 1923, three years after women were granted the right to vote − a fight that took more than 70 years.
But Paul, who lived from 1885 to 1977, would not live to see the amendment become law, even if she did live to see its passage through Congress.
Representatives from the National Organization for Women New Jersey visited the aging activist in 1972 to celebrate after Congress passed the measure, sending it to the states for ratification, said Molly Gonzales, advocacy manager for the Alice Paul Center for Gender Justice in Mount Laurel, New Jersey.
Instead, they found her alone and crying − because she feared not enough states would move to ratify the amendment she'd spent much of her life fighting for.
Paul's fears would be well-founded: The Equal Rights Amendment was given a time limit: Seven years, originally, from congressional passage to ratification by the requisite three-quarters of states. In 1979, Congress extended the deadline to 1982 (35 states had ratified the amendment, still three short of the 38 needed).
What states have not ratified the ERA?
Arizona, Utah, Oklahoma, Louisiana, Missouri, Arkansas, Alabama, Mississippi, Georgia, Florida, North Carolina and South Carolina have not ratified the Equal Rights Amendment.
Washington and Hawaii both ratified the amendment on March 22, 1972, immediately after Congress sent it to the states. New Hampshire and Delaware followed, ratifying on March 23, 1972. Idaho, Iowa (both on March 24, 1972); Kansas (March 28, 1972); Nebraska (March 29, 1972) and Texas (March 30, 1972) all ratified within days of receiving the amendment.
Twenty-six states followed over the following months and years within the original 1979 deadline. But by 1982, the measure had stalled at 35 states ratifying.
Most recently, Nevada ratified the ERA on March 21, 2017. Illinois chimed in on May 30, 2018. Virginia was the 38th and deciding state to ratify, on Jan. 27, 2020.
Equal Rights? Who would oppose that idea?
Some believe the rights enshrined by the Equal Rights Amendment are redundant to other existing amendments, according to PolicyPerspectives.org.
That includes the 14th Amendment, which states: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Another argument against the ERA is that it could potentially backfire in its intention to protect women's rights by ensuring that no laws can be written to specifically protect women.
Some worry, Policy Perspectives writes, that the law could be exploited to further marginalize an entire population in the same way the 14th Amendment was used to argue in favor of the "separate but equal" decision in Plessy v. Ferguson.
Other arguments against the ERA include the potential for women to be included in a military draft; the end of protections for abortion rights; and the creation of genderless public facilities such as restrooms and locker rooms, according to the League of Women Voters.
What is the status of the Equal Rights Amendment now?
Gonzales, whose work with the Alice Paul Center involves not only advocacy but also education about the Equal Rights Amendment, the center's namesake and the long and still-ongoing struggle for women's rights, said as far as she's concerned, "The people have spoken."
The center's position is that the Equal Rights Amendment, now ratified by 38 states, is the law of the land − a measure that has been passed into law, but not implemented or published in the U.S. Constitution.
But that is not the position of the federal government.
A 2020 memo from the Department of Justice's Office of Legal Counsel said that "the ERA thus failed to secure the necessary ratifications within either of Congress’s deadlines."
"We conclude that Congress had the constitutional authority to impose a deadline on the ratification of the ERA and, because that deadline has expired, the ERA Resolution is no longer pending before the States," the memo added.
In November 2024, the National Archives issued a statement saying it would not add the Equal Rights Amendment to the Constitution, citing both the 2020 Office of Legal Counsel memo and a subsequent memo in 2022. "At this time, the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions," the National Archives wrote.
Where does that leave the ERA?
Gonzales said the work to have the ERA fully recognized and implemented is ongoing. She and the Alice Paul Center continue to educate people about the ERA and its roots, how it once had full bipartisan support and how people can get involved on the grassroots level to see it become federal law.
And several states aren't waiting for the federal government: Many have their own Equal Rights Amendments in their state constitution, including California, Washington, Oregon, Texas, Utah, Nevada, Colorado, New Mexico, Pennsylvania, Iowa, Florida, Massachusetts, Virginia and Delaware.
Do you want to share a slice of Americana with Paste BN? Contact Phaedra Trethan by email at ptrethan@usatoday.com, on X (formerly Twitter) @wordsbyphaedra, on BlueSky @byphaedra, or on Threads @by_phaedra
(This story has been updated to add new information.)