The Equal Rights Amendment is a proposed addition to the U.S. Constitution that would prohibit the federal and state governments from denying or abridging equal rights on account of sex. Congress approved it in 1972 and sent it to the states, and by 2020 the 38-state ratification threshold had technically been met. It is still not part of the Constitution. A ratification deadline Congress imposed in 1972 expired in 1982 with the count three states short, and whether the later ratifications can revive the amendment remains unresolved as of 2026.
What the Amendment Actually Says
The ERA runs three short sections. Section 1 is the core guarantee: equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. That language reaches government action. A private employer’s hiring decisions would still be governed by statutes like Title VII of the Civil Rights Act of 1964, not by the ERA itself.1U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964 But any law, regulation, or government policy drawing distinctions based on sex would face a stiffer constitutional test.
Section 2 gives Congress the power to enforce the amendment through legislation. Section 3 delays the effective date by two years after ratification, giving federal and state agencies time to bring their codes into compliance.
How It Would Change the Law
The Constitution already offers some protection against sex discrimination through the Fourteenth Amendment’s Equal Protection Clause, but at a lower level than the ERA would provide. Since the Supreme Court’s 1976 decision in Craig v. Boren, courts have applied “intermediate scrutiny” to sex-based classifications. A sex-based law survives that test if the government shows it serves an important interest and is substantially related to achieving it.
The ERA would almost certainly push courts to apply “strict scrutiny” instead, the same demanding standard used for race-based classifications. Under strict scrutiny, a sex-based law would survive only if the government proved it served a compelling interest and was narrowly tailored to achieve it. Very few laws survive that test. The practical difference matters in both directions: intermediate scrutiny permits some sex-based distinctions justified as promoting equality, such as certain affirmative action programs, while strict scrutiny would treat nearly any sex-based classification as presumptively unconstitutional.
Supporters argue that a constitutional guarantee sits above statutes like Title VII, the Equal Pay Act of 1963, and Title IX of the Education Amendments of 1972, which can be narrowed by regulation or repealed by a later Congress. Opponents argue existing statutes already cover the main ground and that a blanket sex-equality mandate could disturb single-sex prisons, sex-specific military assignments, or programs designed to help women overcome historical disadvantages.
Why It Isn’t in the Constitution Yet
The House approved the ERA on October 12, 1971, by a vote of 354 to 24. The Senate followed on March 22, 1972, passing the identical text 84 to 8. Both votes cleared the two-thirds majority Article V requires, and the resolution went to the states.
The proposing resolution’s preamble carried a seven-year deadline for ratification, setting an expiration date of March 22, 1979. By 1977, 35 of the required 38 states had ratified, then momentum stalled. Congress passed a joint resolution in 1978 extending the deadline to June 30, 1982. No additional states ratified during the extension, and the deadline expired again with the count still at 35.
A central legal question is whether that deadline can be separated from the amendment itself. The seven-year limit appeared in the preamble of the proposing resolution, not in the text the states voted on. Some scholars argue that makes it an administrative instruction Congress can modify or remove. Others contend Congress set a binding condition when it proposed the amendment, and changing it after the fact would undermine the Article V process. That disagreement drives most of the current litigation and legislative debate.
The 38-State Question
Three states ratified long after the 1982 deadline. Nevada became the 36th state to ratify on March 22, 2017. Illinois followed as the 37th in 2018. Virginia became the 38th on January 27, 2020, crossing the threshold if all earlier ratifications still count.
They may not. Lawmakers in five states voted to rescind their earlier ratifications: Nebraska, Tennessee, Idaho, Kentucky, and South Dakota. Whether a state can take back a ratification is one of the oldest unresolved questions in constitutional law. During Reconstruction, Congress treated Ohio and New Jersey’s attempted rescissions of the Fourteenth Amendment as invalid, and that amendment was certified over their objections. No court has ever definitively ruled on whether rescission is permitted under Article V. If all five rescissions count, the total drops well below 38. If none do, Virginia’s 2020 vote crossed the line.
Where Things Stand in 2026
The Archivist of the United States has not certified the ERA, and federal law directs the Archivist to publish an amendment with a certificate confirming ratification only once the process is complete.2Office of the Law Revision Counsel. 1 USC 106b – Amendments to Constitution In a December 2024 statement, the Archivist confirmed that certification was not legally possible, citing opinions from the Department of Justice’s Office of Legal Counsel in 2020 and 2022 that concluded the ratification deadline was valid and enforceable.3National Archives. Statement on the Equal Rights Amendment Ratification Process The statement also noted that federal court decisions at the district and circuit levels have affirmed the deadline’s validity.
The 2020 OLC opinion concluded that Congress had constitutional authority to impose the deadline, that the ERA is not part of the Constitution because 38 states had not ratified before the deadline expired, and that the Archivist may not certify it. The opinion also concluded that once Congress proposes an amendment, it lacks authority to go back and change the original deadline. A 2022 follow-up memorandum reaffirmed those conclusions.4U.S. Department of Justice. Effect of 2020 OLC Opinion on Possible Congressional Action Regarding the ERA
What Congress Is Doing
Members of Congress have introduced resolutions declaring the ERA already ratified and directing its publication. H.J.Res. 25 in the 118th Congress (2023–2024) stated that the ERA had been ratified by three-fourths of the states and should be recognized as a valid amendment regardless of the deadline.5U.S. Congress. H.J.Res.25 – Removing the Deadline for the Ratification of the Equal Rights Amendment Similar resolutions have been introduced in later sessions. None have passed both chambers.
What the Courts Are Doing
Multiple lawsuits have sought to compel the Archivist to certify the ERA. As of early 2026, cases have been filed in federal courts in Massachusetts, North Carolina, and the District of Columbia. The North Carolina case was dismissed at the district court level and appealed. The cases raise overlapping questions: whether the deadline is constitutionally binding, whether Congress can impose conditions on Article V ratification at all, and whether courts have jurisdiction to decide these issues or whether they present “political questions” that only Congress can resolve. In Coleman v. Miller (1939), the Supreme Court suggested that some aspects of the amendment process are political questions beyond judicial review, though later decisions narrowed that doctrine. Until a court rules on the merits or Congress passes a resolution both chambers can agree on, the ERA’s status remains what the Archivist says it is: not certified, and not part of the Constitution.