Progressive activists in Congress are mounting pressure on President Joe Biden to direct the Archivist of the United States to certify and publish the Equal Rights Amendment – which would become the first explicit mention of women in the US Constitution.
When Biden announced Friday that he believed a sweeping amendment that would add language to the U.S. Constitution explicitly prohibiting sex discrimination should be considered for ratification, U.S. Rep. Summer Lee, a progressive Democrat from Pennsylvania, said it was “already long overdue.”
The amendment was originally proposed in the 1920s and approved by Congress in 1972, but was not ratified by the required 38 states by Congress’s 1982 ratification deadline.
“The announcement of the country’s ERA law is just one element of a broader effort to close the gender pay gap, defend reproductive justice, combat gender-based violence, and ensure that the rights of women and LGBTQIA+ people are protected and expanded,” Lee said , long-time supporter of ERAin a statement.
Biden’s announcement comes in the final days of his presidency and likely indicates the president’s efforts to further enhance his legacy. However, his statements, while exciting to many supporters, had no legal force.
Presidents play no role in ratifying constitutional amendments, and the Archivist of the United States, who is responsible for certifying and publishing new amendments once they reach the ratification threshold, said last month the amendment could not be confirmed without action by Congress or the courts.
Still, supporters would like to see Biden take earlier action or take stronger action by issuing an executive order could open the door to legal battles. He he told reporters on Friday that he refrained from expressing his executive opinion until all the facts were known.
“It’s quite disappointing that Joe Biden chose to issue an executive opinion today rather than an executive order, which he could have easily done,” said Molly Gonzales, advocacy manager at the Alice Paul Center for Gender Justice.
Members of the U.S. Congressional delegation in Pennsylvania, which would help determine the future of the ERA, have mixed opinions on whether the amendment can still be ratified.
“I believe it is the duty of the Archivist of the United States to publish the ERA as the 28th Amendment now that President Biden has confirmed that it has been properly ratified,” said U.S. Rep. Dwight Evans (R-PA).
U.S. Rep. Dan Meuser (Pennsylvania), a staunch ally of President-elect Donald Trump, said as the father of two daughters that “women deserve equal protection under the law and an equal opportunity to succeed,” but that member states failed to act on time.
In 2020, Virginia became the 38th state to ratify the amendment. Biden and other supporters to argue that the ERA itself has not set a timetable for its ratification.
Pennsylvania codified its own ERA at the state level in 1971, and the amendment was used to end prohibitions on government funding of abortion. But the federal version of the amendment would extend the same protections to women in other states with fewer protective barriers, said Gonzales of the Alice Paul Center.
“An opportunity for opponents of gender discrimination”
Biden has faced pressure for weeks from feminist groups and Democratic lawmakers to announce an amendment approved before President-elect Donald Trump took office on Monday.
David S. Cohen, a professor of constitutional law at Drexel Law, said that recognizing the ERA could go a long way toward strengthening equal protection laws in the U.S., protecting transgender rights and protecting abortion rights across the country. Abortion rights and transgender rights are continually restricted by Republican Party state legislatures, and members of the U.S. Congress are trying unsuccessfully to do the same at the national level. Trump campaign supporters have spent tens of millions of dollars on anti-trans rights ads in Pennsylvania and other battleground states.
While Cohen said Friday’s announcement by Biden means nothing from a legal perspective, it could spur further activism and legal action around the ERA.
“This is an opportunity for opponents of gender discrimination to go on the offensive,” Cohen said. “Regardless of the state of American politics, I think most people will probably agree that women deserve equal rights under the Constitution and people should keep beating the drum on this issue.”
