How President Biden can win back momentum on women’s rights

After 50 years of debate, overwhelming demonstrations of support, and successful clearance of required legal hurdles, it’s time to finally affirm gender equality in the Constitution.

On Jan. 27, the United States Constitution should have become 24 words longer, and the principle of equality between the sexes—for the first time in history—been enshrined in the highest law of our land.

Two years ago this month, Virginia became the 38th state to ratify the Equal Rights Amendment (ERA), meaning that the amendment—which guarantees that “equality of rights under the law shall not be denied or abridged … on account of sex”—has cleared the official requirements for approval by two-thirds of both chambers of Congress and three-fourths of the state legislatures or conventions for inclusion in the Constitution. Because the amendment says it would take effect two years after ratification, this month is supposed to mark the moment when it is officially enforceable.  

The Archivist of the United States, David Ferriero, who holds responsibility for updating the Constitution when new amendments are ratified, has refused to add the ERA, citing a Trump-era legal memo from the office of then-Attorney General William Barr, claiming that it is not valid because of a congressionally-imposed deadline on ratification that some say expired in 1982. Yet Ferriero himself issued a letter in 2012 stating that he would publish the ERA in the Constitution, irrespective of the deadline, if 38 states ratified it. Many scholars believe that Congress does not have authority, under Article V of the Constitution, to impose such a deadline on the states.

The formal guarantee of legal equality between the sexes isn’t just a symbolic move. It’s a fundamental shift in law and policy. Under the ERA, women would finally, after more than two centuries, realize the full promise of “Equal Justice under Law.” The amendment would require all laws and policies of the government to apply equally and to be enforced equally with respect to gender. Ratifying the ERA would mean that cases alleging sex discrimination would be subject to the highest level of constitutional review, as is the case for race-based discrimination. For example, while the Equal Pay Act of 1963 prohibits sex-based differences in compensation, the law’s “affirmative defense framework” permits an employer to put forward an extremely wide variety of defenses to justify a discriminatory practice. Ratifying the ERA would help close this loophole and, in turn, help close the gender pay gap. It would have similar implications for the defense against gender-based discrimination in areas from education to health care.

Next year will mark 100 years since suffragists, including Alice Paul and Crystal Eastman, first proposed an amendment to the Constitution guaranteeing equal rights for women. Over the course of a century, there’s been a mostly steady march of progress on gender equity. But, progress has largely stalled, and full legal equality will always be elusive without the ERA. 

In recent years, the #MeToo movement has exposed the depth of the injustices and abuses that women endure in this country and beyond. The Trump administration’s regulatory changes—including halting gender pay data collection, weakening Title IX rules that prohibit sex discrimination in federally funded education programs, and limiting an increase in the overtime threshold—revealed the fragility of the policy apparatus that supports gender equity.

In his campaign platform, then-candidate Biden promised to “work with advocates across the country to pass the Equal Rights Amendment (ERA) so women’s rights are once and for all explicitly enshrined in our Constitution.” He promised to “proudly advocate for Congress to recognize that 3/4th of states have ratified the amendment and take action so our Constitution makes clear that any government-related discrimination against women is unconstitutional.”

He has a golden opportunity to make good on his promise. Reversing the Trump-era legal memo that rejected the ERA is necessary but not sufficient. President Biden should instruct the Archivist, an employee of the executive branch, to publish the amendment in the Constitution. Further, President Biden should use the bully pulpit to let Americans know that the equality on the basis of sex as a fundamental principle of American Democracy is now enshrined in our Constitution.

The late Justice Ruth Bader Ginsburg once described the issue with elegant simplicity: “I would like my granddaughters, when they pick up the Constitution, to see that notion — that women and men are persons of equal stature — I’d like them to see that this is a basic principle of our society.” RBG was in good company. In recent polling, 75 percent of respondents said they would support an amendment to the Constitution guaranteeing equal rights for men and women. President Biden should do everything in his power to ensure that this just and popular principle is enshrined in law.

Speier sponsored a joint resolution to facilitate ratification of the ERA. Jennifer McClellan (D) is a state senator from Virginia and was chief patron of the resolution that ratified the Equal Rights Amendment, making Virginia the 38th and final state needed to add the ERA to our Constitution. Steve Andersson (R) is a retired state representative from Illinois and was the chief co-sponsor of the resolution ratifying the Equal Rights Amendment and making Illinois the 37th state to ratify the ERA. Patricia Spearman (D) is a state senator in Nevada who introduced the resolution to ratify the ERA in the Nevada state Senate after decades of inaction, helping to spur Virginia and Illinois to ratify the ERA.