The Equal Rights Amendment is a proposed addition to the U.S. Constitution that would bar the federal government and the states from denying or reducing equality of rights under the law on account of sex. First introduced in Congress in 1923 and finally passed by both chambers in 1972, it has been approved by the thirty-eight states needed under Article V. It still is not part of the Constitution, because the federal government treats the ratifications that pushed it over the threshold as too late to count.
What the Amendment Actually Says
The text is short. Section 1 declares that equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.1GovInfo. Proposed Amendment to the Constitution of the United States Section 2 gives Congress the power to enforce that guarantee through legislation. Section 3 says the amendment would take effect two years after ratification, giving federal and state governments time to bring their laws into line.
Suffragists Alice Paul and Crystal Eastman wrote the original 1923 draft. The version Congress ultimately approved in 1972 uses the “shall not be denied or abridged” formula borrowed from the Nineteenth Amendment.
How It Would Change Existing Law
The Fourteenth Amendment’s Equal Protection Clause already forbids some sex discrimination, but it does not treat sex the way it treats race. Racial classifications trigger strict scrutiny: the government must show the law is necessary to achieve a compelling purpose. Sex-based classifications face a weaker test, requiring only an important government interest and a substantial relationship between the classification and that interest.
The Supreme Court tightened that standard in 1996 by requiring an “exceedingly persuasive justification” for treating men and women differently, but the review still falls short of what applies to race. The ERA would close that gap, putting sex on the same constitutional footing as race for purposes of judicial scrutiny.
How It Moved Through Congress and the States
The House passed House Joint Resolution 208 on October 12, 1971, and the Senate followed on March 22, 1972, both by wide bipartisan margins.2Pieces of History. Unratified Amendments: The Equal Rights Amendment Ratification by the states started fast. Within a year, thirty state legislatures had approved it. Then opposition organized, and only five more states ratified over the following years.
The resolution Congress passed set a seven-year ratification deadline of March 22, 1979. That detail sits at the center of the modern dispute: the deadline appeared in the resolution’s proposing clause, not in the text of the amendment itself.3Congress.gov. House Joint Resolution 208 – Equal Rights Amendment When 1979 arrived with only thirty-five states on board, Congress voted by simple majority to extend the deadline to June 30, 1982.4United States Department of Justice. Ratification of the Equal Rights Amendment No additional state ratified before the extended deadline expired, and the amendment appeared dead.
It came back decades later through what supporters called the three-state strategy. The argument: because the deadline lived in the proposing clause and not in the amendment itself, it was not a binding constitutional requirement. Article V says an amendment becomes valid when three-fourths of the states ratify.5National Archives. Article V, U.S. Constitution With fifty states, that is thirty-eight. Nevada ratified in 2017, Illinois in 2018, and Virginia in January 2020, bringing the count to thirty-eight.3Congress.gov. House Joint Resolution 208 – Equal Rights Amendment
Why Thirty-Eight States Has Not Been Enough
Two problems block certification. The first is that five states, Nebraska, Tennessee, Idaho, Kentucky, and South Dakota, voted to rescind their earlier ratifications. If those rescissions are valid, the count falls back below thirty-eight. The Constitution says nothing about whether a state can withdraw a ratification once given, and the Supreme Court has never squarely decided the question. Its closest ruling, Coleman v. Miller in 1939, held that ratification disputes are political questions for Congress to resolve rather than issues for courts.6Justia. Coleman v. Miller
The second problem is the deadline. Under 1 U.S.C. ยง 106b, the Archivist of the United States must publish an amendment with an official certificate once the constitutional threshold is met.7Office of the Law Revision Counsel. 1 U.S. Code 106b – Amendments to Constitution In January 2020, the Justice Department’s Office of Legal Counsel issued an opinion concluding that Congress had constitutional authority to impose the deadline, that the deadline was valid, and that the ERA “has failed of adoption and is no longer pending before the States.”4United States Department of Justice. Ratification of the Equal Rights Amendment Based on that opinion, the Archivist has declined to certify the amendment.
A follow-up OLC opinion in 2022 said the 2020 memo did not stop Congress from taking new action, but reaffirmed that the deadline was “valid and enforceable” and that resolving the situation would require new legislation or a court ruling.8United States Department of Justice. Effect of 2020 OLC Opinion on Possible Congressional Action Regarding Ratification of the Equal Rights Amendment In December 2024, the National Archives issued a public statement reiterating that the ERA “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”9National Archives. Statement on the Equal Rights Amendment Ratification Process
Where the Courts Have Landed
Illinois and Nevada tried to force certification through a mandamus action. In February 2023, the U.S. Court of Appeals for the D.C. Circuit dismissed the case, ruling that the states had not shown the Archivist owed a clear duty to certify the amendment.10Justia. State of Illinois v. David Ferriero The court held it lacked jurisdiction, consistent with the Coleman framework that treats ratification disputes as political questions. No court has ruled on the merits of whether a deadline placed in a proposing clause, rather than in the amendment text, is constitutionally binding.
What Congress Is Trying Now
Members of Congress have introduced several joint resolutions to retroactively remove the ratification deadline. The most recent significant effort was S.J.Res.4 in the 118th Congress, which would have declared the ERA valid as part of the Constitution regardless of the expired timeline.11Congress.gov. A Joint Resolution Removing the Deadline for the Ratification of the Equal Rights Amendment In April 2023, a procedural vote drew 51 in favor and 47 against. That was a simple majority but short of the 60 votes needed to overcome a filibuster. The resolution never got a final floor vote.
Whether Congress can strip the deadline by simple majority, or whether the same two-thirds vote used to propose an amendment is required, is itself unresolved. Supporters say the deadline was a procedural add-on and can be removed by ordinary legislation. Opponents say altering the terms of a constitutional amendment is an Article V act that needs a supermajority. Until Congress passes a deadline-removal measure or a court reaches the merits, the ERA sits in an unresolved state: ratified by thirty-eight states on paper, uncertified by the Archivist, and unadopted as a matter of federal recognition.