The ERA bill, short for the Equal Rights Amendment, is a proposed amendment to the U.S. Constitution that would prohibit the federal government and the states from denying or reducing equal rights on account of sex. Thirty-eight states have ratified it, meeting the three-fourths threshold Article V requires, but the amendment has not been added to the Constitution. Congress attached a ratification deadline that expired in 1982, the Justice Department and the National Archivist have treated that deadline as binding, and federal courts have so far agreed. Resolutions to remove the deadline and direct the Archivist to publish the ERA as the 28th Amendment remain pending in Congress.
What the Amendment Says
The proposed amendment runs three short sections. Section 1 declares that equality of rights under the law cannot be denied or reduced by the United States or by any state on account of sex. Section 2 gives Congress the power to enforce the guarantee through legislation. Section 3 says the amendment takes effect two years after ratification.1Congress.gov. H.J. Res. 35 – Equal Rights Amendment
The text names no specific policies. It sets a constitutional baseline that courts would apply wherever government treats people differently based on sex.
Why the Legal Stakes Are High
The Fourteenth Amendment already bars states from denying equal protection of the laws, and since 1971 the Supreme Court has applied it to sex discrimination. But sex-based classifications receive intermediate scrutiny, not the strict scrutiny used for race. Under intermediate scrutiny, the government only needs to show that a law furthers an important interest and that the classification is substantially related to that interest.2Legal Information Institute. Intermediate Scrutiny The lower standard makes sex-based distinctions easier to sustain, and results across jurisdictions have been inconsistent for decades.
Adding the ERA would almost certainly elevate sex to a suspect classification, subjecting sex-based government action to strict scrutiny. That shift is the practical reason the ratification fight has continued past the deadline.
The Deadline Problem
Congress passed the ERA in 1972 and sent it to the states with a seven-year ratification deadline written into the proposing resolution’s preamble rather than into the amendment’s text. By 1977, 35 states had ratified. In 1978, Congress extended the deadline to June 30, 1982. The House passed the extension 233 to 189 and the Senate 60 to 36, and the House rejected an attempt to require a two-thirds vote, passing the extension by simple majority instead. No additional states ratified during the extension, and the deadline expired at 35.
Three more states ratified decades later: Nevada in 2017, Illinois in 2018, and Virginia on January 27, 2020. Virginia’s vote brought the count to 38, the number Article V requires with 50 states.3Constitution Annotated. Article V – Amending the Constitution By then the deadline had been expired for nearly four decades.
Why It Isn’t in the Constitution Yet
On January 6, 2020, weeks before Virginia ratified, the Department of Justice Office of Legal Counsel issued an opinion concluding that the ERA “has failed of adoption and is no longer pending before the States.” The opinion said Congress has constitutional authority to impose ratification deadlines, that it did so with the ERA, and that even if additional states ratified, the Archivist could not certify the amendment.4U.S. Department of Justice. Ratification of the Equal Rights Amendment The National Archives has declined to publish or certify the ERA.
Under federal law, the Archivist’s certification duty is ministerial: once official notice is received that an amendment has been adopted according to constitutional provisions, the Archivist must publish it with a certificate.5Office of the Law Revision Counsel. United States Code Title 1 – 106b The unresolved question is whether valid official notice can arrive decades after the deadline Congress itself set.
Supporters raise two counterarguments. Article V’s text says nothing about ratification deadlines. And because the ERA’s deadline sat in the proposing resolution’s preamble rather than in the amendment’s text, they argue it is a procedural choice Congress can undo. They point to the 27th Amendment, proposed in 1789 with no deadline attached and ratified in 1992, more than 200 years later, without controversy over its certification.6National Archives. The Constitution – Amendments 11-27 Opponents read that same history the other way: the absence of a deadline in 1789 is precisely what allowed the long gap, which shows that a deadline, when included, matters.
Where the Courts Stand in 2026
Two recent federal cases have tested whether the ERA can be treated as ratified despite the expired deadline. Both went against ERA supporters.
In Valame v. Trump, the Ninth Circuit affirmed a lower court’s dismissal, holding that the ERA “was not ratified by three-fourths of the States prior to the deadline set by Congress, June 30, 1982” and noting that the Archivist never published or certified it.7U.S. Court of Appeals for the Ninth Circuit. Valame v. Trump The court treated the deadline as dispositive.
In Equal Means Equal v. Trump, filed in the District of Massachusetts to challenge the male-only Selective Service registration requirement under the ERA, the court dismissed the case in April 2026. It found the organizational plaintiff lacked standing and that binding Supreme Court precedent foreclosed the individual plaintiff’s equal protection claim.8CourtListener. Equal Means Equal v. Trump, 1:25-cv-10806 Neither case has produced a Supreme Court ruling on whether Congress’s ratification deadline is constitutionally enforceable.
The Congressional Path
With the courts unwilling to declare the ERA ratified, the remaining route runs through Congress. Lawmakers have introduced joint resolutions declaring that the ERA has satisfied Article V and that the ratification deadline is removed. In the 119th Congress, S.J. Res. 38 affirms that the ERA was validly ratified by three-fourths of the states and should be recognized as part of the Constitution.9Congress.gov. S.J. Res. 38 – 119th Congress Companion resolutions have been introduced in the House.
Proponents argue that if Congress had the power to set the deadline, it has the power to remove it, and they cite the 1978 extension as proof Congress has already done so once. Under this theory, a simple majority in both chambers is enough because the resolution addresses Congress’s own procedural conditions rather than proposing a new amendment, which would require a two-thirds vote. If such a resolution passed, it would direct the Archivist to certify and publish the ERA as the 28th Amendment.
Opponents argue that these resolutions bypass Article V and that the expired deadline requires starting over: a fresh two-thirds vote in Congress followed by ratification in 38 state legislatures. Passage of any deadline-removal resolution is unlikely in the current Congress, but the resolutions keep the issue alive and shape the legal arguments for future sessions and cases.
A Complication in the State Count
Five states attempted to rescind their ratifications: Nebraska in 1973, Tennessee in 1974, Idaho in 1977, Kentucky in 1978, and South Dakota in 1979. Whether a state can withdraw a ratification is unresolved. In Coleman v. Miller, the Supreme Court held in 1939 that questions about the validity of state ratifications are political questions for Congress rather than the courts, and that Congress has “the final determination of the question whether by lapse of time its proposal of the amendment had lost its vitality.”10Library of Congress. Coleman v. Miller, 307 U.S. 433 If the rescissions were counted, only 33 states would remain, below the 38 required. The rescission question therefore only matters if the deadline dispute is resolved in the ERA’s favor first.
For now, the ERA’s status has not changed: 38 states have ratified, the Archivist has not published it, the federal courts that have addressed it have treated the 1982 deadline as binding, and any change will come from Congress or the Supreme Court.