Equal Rights Amendment: What It Is and Why It’s Not Law Yet

The Equal Rights Amendment is a proposed addition to the U.S. Constitution that would bar the federal government and the states from denying equal legal rights on account of sex. Congress passed it in 1972 and sent it to the states, and by January 2020 the required 38 states had voted to ratify. It still is not part of the Constitution. The Archivist of the United States has refused to certify it, pointing to a ratification deadline that expired in 1982 and a Department of Justice opinion backing that position.¹

What the Amendment Would Do

The proposal is three short sections. Section 1 says equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.² Section 2 gives Congress the power to enforce it through legislation. Section 3 delays the amendment’s effect for two years after ratification, giving governments time to conform existing laws.³

Congress approved the resolution in 1972 by the two-thirds supermajority that Article V requires, sending it to the state legislatures for ratification.² Three-fourths of the states, or 38 out of 50, must ratify for an amendment to take effect.⁴

Why It Isn’t in the Constitution Yet

When Congress passed the ERA in 1972, it wrote a seven-year ratification deadline into the preamble of the joint resolution. That deadline was later extended to June 30, 1982. Only 35 states had ratified by then. Ratification revived decades later: Nevada in 2017, Illinois in 2018, and Virginia on January 15, 2020, which made 38.

The unresolved legal question is whether those late ratifications count. The Justice Department’s Office of Legal Counsel issued an opinion on January 6, 2020, concluding that the seven-year deadline was constitutionally valid, that 38 states had not ratified before it expired, and that the Archivist therefore may not certify the amendment. OLC reaffirmed that view in 2022.⁵

In early 2025, the Archivist issued a public statement explaining that both the OLC opinions and federal court decisions at the district and circuit levels had affirmed the validity of the ratification deadlines, and that the Archivist cannot legally publish the amendment.¹

Supporters argue the deadline never had constitutional force because it was placed in the preamble of the resolution, not in the amendment’s actual text. Article V says nothing about time limits, and the Supreme Court has treated ratification questions as political matters for Congress to resolve rather than issues for the courts.⁶ Illinois, Nevada, and Virginia sued the Archivist to compel certification; the case went to the D.C. Circuit in 2023.⁷ A separate lawsuit brought by Alabama and other states to block certification was voluntarily dismissed, with a stipulation requiring 45 days’ notice before any future certification attempt.¹

The Rescission Problem

Five states voted to withdraw their earlier ratifications before the 1982 deadline: Nebraska in 1973, Tennessee in 1974, Idaho in 1977, Kentucky in 1978, and South Dakota in 1979.³ If those rescissions count, the tally falls below 38 even with the three recent additions.

Article V does not address rescission at all. The clearest precedent runs the other way: during ratification of the 14th Amendment in 1868, two states tried to withdraw their approval and Congress counted them anyway.⁸ Because the Supreme Court has treated these disputes as political questions, the answer likely rests with Congress. If Congress moved to recognize the ERA, it could take the same approach and disregard the rescissions.

What Would Have to Happen Next

Because the courts have largely deferred to Congress, the realistic path for the ERA runs through Capitol Hill. In the 119th Congress, H.J. Res. 80 was introduced to establish the amendment’s ratification. As of March 2025, it had been referred to the House Judiciary Committee and was awaiting further action.⁹

Similar resolutions have been introduced in previous sessions without reaching a floor vote. Even the vote threshold is contested. Supporters say a simple majority can remove or void a deadline that was set by simple joint resolution. Opponents disagree and argue any revival would require the same two-thirds supermajority used for the original proposal. That question, like the deadline itself and the rescissions, has never been settled by a court.

What Would Change if It Took Effect

Today, when someone challenges a law that treats men and women differently, courts apply intermediate scrutiny. The government must show the law serves an important objective and that the sex-based line is substantially related to achieving it. The Supreme Court has stiffened that test by demanding an “exceedingly persuasive justification” for sex-based classifications, a phrase from its 1996 decision striking down the Virginia Military Institute’s male-only admissions policy.¹⁰ Classifications based on race or national origin get a tougher standard, strict scrutiny, and most laws reviewed under strict scrutiny do not survive.

Legal scholars broadly agree the ERA would move sex into that top tier. Justice Powell’s 1973 concurrence in Frontiero v. Richardson hinted at as much, suggesting the Court should wait for the amendment rather than independently declare sex a suspect classification. The two-year buffer in Section 3 was written for the practical work that would follow.

Military Draft Registration

The Selective Service System requires male residents between 18 and 25 to register for a potential draft. Supporters and opponents of the ERA have long agreed ratification would end the male-only rule. Congress would then have to extend registration to everyone or drop it entirely. The Fiscal Year 2026 National Defense Authorization Act already moved male registration to an automatic process using federal databases, but the underlying sex distinction would be constitutionally exposed if the ERA took effect.

Family Law

Alimony, custody, and child support statutes in many states still use language tied to gendered assumptions about caregiving. Under the ERA, laws using sex as the sole basis for benefits or obligations would need sex-neutral replacements. Courts in states with their own equal rights provisions have shown one route, substituting terms like “primary caregiver” for “mother” and evaluating custody on each parent’s actual role. The same logic would apply federally to programs like Social Security spousal and survivor benefits, which historically treated husbands and wives differently.

Insurance Pricing

Auto insurers in most states charge different rates based on sex, relying on actuarial data. Health and life insurance also factor sex into pricing in many contexts. A constitutional bar on sex-based legal distinctions would put those practices on uncertain ground. California banned gender-based auto insurance pricing in 2019, offering one model, though some actuarial researchers have raised concerns that removing sex as a rating factor can produce mismatches between premiums and actual risk.

Workplace and Education Protections

Title VII and Title IX already bar sex discrimination in employment and education, but statutes can be weakened or repealed by a later Congress. A constitutional amendment sits above any statute. For workers and students, the practical difference is durability: a right embedded in the Constitution is harder to erode than one that depends on a particular Congress leaving a law intact.

1
National Archives. Statement on the Equal Rights Amendment Ratification Process
2
U.S. Government Publishing Office. House Joint Resolution 208 – Proposing an Amendment to the Constitution Relative to Equal Rights for Men and Women
3
Congress.gov. The Proposed Equal Rights Amendment – Congressional Hearing Document
4
Constitution Annotated. U.S. Constitution Article V – Amending the Constitution
5
U.S. Department of Justice. Effect of 2020 OLC Opinion on Possible Congressional Action Regarding the ERA
6
Justia. Coleman v. Miller, 307 U.S. 433 (1939)
7
Justia. State of Illinois v. David Ferriero, No. 21-5096 (D.C. Cir. 2023)
8
Constitution Annotated. Article V – Effect of Prior Rejection or Rescission of Ratification
9
Congress.gov. H.J.Res.80 – 119th Congress – Establishing the Ratification of the Equal Rights Amendment
10
Justia. United States v. Virginia, 518 U.S. 515 (1996)