The Equal Rights Amendment is a proposed addition to the U.S. Constitution that would explicitly prohibit the federal government and the states from denying or abridging equal rights on account of sex. Congress passed it in 1972 and sent it to the states. Thirty-eight states — the number Article V requires — have now voted to ratify it, but it has not been certified as part of the Constitution because Congress attached a ratification deadline that expired in 1982, five states voted to rescind their approval, and the Archivist of the United States has declined to publish the amendment while those questions remain unresolved.
What the Amendment Actually Says
The ERA as passed by Congress in 1972 has three short sections. Section 1 is the substance: “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 gives Congress the power to enforce the amendment through legislation. Section 3 delays the amendment’s effective date until two years after ratification, allowing federal and state governments time to conform their laws.1GovInfo. Proposed Amendment to the Constitution of the United States
The enforcement structure follows a familiar pattern. The Thirteenth, Fourteenth, Fifteenth, and Nineteenth Amendments all contain similar clauses letting Congress pass supporting legislation.
The amendment was first introduced in Congress in 1923 by suffragist Alice Paul, shortly after the Nineteenth Amendment gave women the vote. It took nearly half a century to clear both chambers.
What Would Change if It Were Adopted
Right now, protection against sex discrimination comes from two places: the Fourteenth Amendment’s Equal Protection Clause and a set of federal statutes. The Fourteenth Amendment does not mention sex, but starting in the 1970s the Supreme Court read it to cover sex-based classifications. In Craig v. Boren (1976), the Court set the standard at “intermediate scrutiny”: the government must show that a sex-based law serves an important objective and is substantially related to achieving it.
Intermediate scrutiny sits in the middle of the judicial-review ladder. It is less demanding than the “strict scrutiny” applied to race, where a law is presumed unconstitutional unless it is narrowly tailored to serve a compelling interest. Under strict scrutiny, discriminatory laws are almost always struck down. Under intermediate scrutiny, courts give the government more room to justify treating people differently based on sex.
Statutes fill in the rest. Title VII of the Civil Rights Act of 1964 bars sex discrimination in the workplace. Title IX of the Education Amendments of 1972 bars it in federally funded education programs. The Equal Pay Act of 1963 requires equal pay for equal work.
Supporters of the ERA argue that adopting it would push sex-based classifications up to strict scrutiny, matching the standard applied to race. It would also create a constitutional floor that Congress could not lower by ordinary legislation, since statutes like Title VII and the Equal Pay Act can be amended or repealed and their reach depends on how courts read them.
Opponents have raised different concerns. Some argue the amendment could affect sex-separated spaces such as shelters for domestic violence survivors or could be used to challenge laws that account for biological differences between the sexes. Others contend that existing constitutional protections and federal statutes already provide adequate safeguards, making the amendment unnecessary.
Why the ERA Is Not in the Constitution Yet
Two problems have kept the amendment from being certified: the deadline Congress attached to it, and the five states that voted to rescind their ratifications.
The Deadline
The joint resolution that sent the ERA to the states contained a seven-year ratification deadline. The deadline was placed in the preamble of the resolution, not in the text of the amendment itself. The resolution said the amendment would become valid “when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress.”1GovInfo. Proposed Amendment to the Constitution of the United States
By 1978, 35 of the needed 38 states had ratified, and momentum had stalled. Congress voted to extend the deadline to June 30, 1982, by a simple majority rather than the two-thirds vote used for the original resolution. That extension itself became legally controversial: critics argued Congress could not change the terms after the amendment had been sent to the states, while supporters argued Congress retains ongoing control over the process. The 1982 date passed without three more ratifications.
Whether the deadline is binding at all is disputed. ERA supporters point out that the states never ratified the deadline language — only the three sections of the amendment. Opponents say the deadline was a condition of the offer Congress made to the states and has to be honored.
The Rescissions
Between 1973 and 1979, five states that had ratified the ERA voted to rescind their approval: Nebraska, Tennessee, Idaho, Kentucky, and South Dakota. The Constitution does not directly say whether a state can take back a ratification vote.
There is precedent both ways. During the Fourteenth Amendment’s ratification in 1868, New Jersey and Ohio tried to withdraw their ratifications; Congress disregarded those rescissions and counted the states as ratifying. The Supreme Court has described that episode as one where “the political departments of the Government” found the attempted withdrawals “ineffectual in the presence of an actual ratification.”2Constitution Annotated | Congress.gov | Library of Congress. Effect of Prior Rejection of an Amendment or Rescission of Ratification In the other direction, a federal district court ruled in Idaho v. Freeman (1981) that states do have the power to rescind and that Congress’s deadline extension was invalid.3Justia Law. State of Idaho v Freeman, 529 F. Supp. 1107 (D. Idaho 1982) The Supreme Court vacated that decision after the 1982 deadline passed and the case became moot, so the rescission question has never been settled at the highest level.
The stakes are large. If the rescissions stand, the ERA falls short of 38 unrescinded ratifications no matter what recent states have done. If they do not stand, the original votes remain on the books.
How the ERA Reached 38 States
Congress passed the ERA in March 1972 and sent it to the states. Ratifications came quickly at first and then slowed to a halt well short of 38 by 1982. For decades afterward, the amendment appeared dead.
A renewed campaign in the 2010s, sometimes called the “Three-State Strategy,” argued that the expired deadline was not a permanent barrier and that only three more ratifications were needed. Nevada ratified in March 2017. Illinois followed in 2018. On January 27, 2020, Virginia became the 38th state to ratify, meeting the numerical threshold in Article V.4State of Nevada. Continues Fight to Recognize Equal Rights Amendment as Part of US Constitution
Supporters point to the 27th Amendment, originally proposed in 1789 and ratified in 1992, as evidence that ratification can remain open indefinitely.5National Archives. A Record-Setting Amendment – Pieces of History Opponents note that the 27th Amendment carried no deadline at all, which distinguishes it from the ERA.
Where Certification Stands
Federal law tasks the Archivist of the United States with certifying and publishing a new amendment once three-fourths of the states have ratified it.6Office of the Law Revision Counsel. 1 U.S.C. 106b – Amendments to Constitution The Archivist has not done so for the ERA.
In January 2020, the Department of Justice Office of Legal Counsel issued a formal opinion concluding that the ERA’s ratification deadline had expired and that the Archivist could not certify it as part of the Constitution.7Department of Justice. Ratification of Equal Rights Amendment A follow-up memo in 2022 clarified that “nothing in the opinion stands as an obstacle to Congress’s ability to act” and that the federal courts could also resolve the open questions.8Department of Justice. Effect of 2020 OLC Opinion on Possible Congressional Action Regarding Ratification of the Equal Rights Amendment
In December 2024, the Archivist and Deputy Archivist issued a public statement reaffirming that “the Equal Rights Amendment (ERA) cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions,” noting that court decisions at the district and circuit levels have upheld the validity of the congressional ratification deadlines.9National Archives. Statement on the Equal Rights Amendment Ratification Process
In January 2025, President Biden issued a White House statement recognizing the ERA as the 28th Amendment and describing it as “the law of the land.” That statement was removed from the White House website shortly after the change in administration, and the new administration issued an executive order directing federal agencies to recognize only biological sex assigned at birth. In March 2025, bipartisan resolutions were introduced in both the House and Senate to affirm the ERA as a valid part of the Constitution. Earlier versions, including measures to remove the ratification deadline entirely, had been introduced in prior sessions of Congress but did not receive a floor vote.10United States Congress. H.J.Res.25 – 118th Congress (2023-2024) – Removing the Deadline for the Ratification of the Equal Rights Amendment
What Could Finally Resolve It
Three paths could give the ERA a definitive answer. Congress could pass legislation removing or retroactively extending the ratification deadline. The Supreme Court could rule on whether a deadline placed in the preamble of a joint resolution is binding on the states. A court could also settle whether the five rescissions are valid, which would determine whether 38 unrescinded ratifications actually exist. Until one of those paths produces a final answer, the Equal Rights Amendment is not officially part of the United States Constitution.