The Equal Rights Amendment states: "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." This language, drafted in 1972, was intended to enshrine gender equality into the U.S. Constitution.
The amendment's core purpose is to eliminate legal distinctions based on sex. It applies to all areas of law-employment, education, property rights, military service, and access to public benefits. By inserting this principle into the Constitution, supporters argued it would prevent future laws from discriminating on the basis of gender.
Despite passing Congress in 1972 with bipartisan support, the ERA has not been ratified by the required 38 states. As of 2024, 38 states have formally approved it, but the validity of those ratifications remains legally contested due to the original seven-year deadline set by Congress.
If ratified, the Equal Rights Amendment would serve as a constitutional floor for gender equality. Courts would interpret laws through the lens of the ERA, requiring any sex-based classification to meet strict scrutiny-meaning the government must show a compelling reason and that the law is narrowly tailored to achieve it.
This standard is stricter than the previous "rational basis" test, which allowed many gender-based laws to stand unless proven arbitrary. Under the ERA, a law denying women access to a particular job because of their sex would face immediate constitutional challenge.
For example, in 1976, the Supreme Court upheld a state law that excluded women from serving on juries. With the ERA in place, such a law would likely be struck down as violating the constitutional guarantee of equal protection.
The ERA consists of exactly two sentences:
The first sentence establishes the principle. The second grants Congress authority to pass laws enforcing it-similar to how the 13th, 14th, and 15th Amendments empowered Congress to act.
Unlike most constitutional amendments, the ERA does not define "sex" or list specific protections. Its strength lies in its broad, principle-based language. This allows courts to apply it to emerging issues-such as pregnancy discrimination, transgender rights, or pay equity-without needing new legislation.
Many people assume the ERA would mandate gender quotas, force women into combat roles, or eliminate single-sex institutions. These fears are unfounded. The amendment does not require equal outcomes, nor does it abolish all sex-based distinctions.
For example, the ERA would not force schools to allow boys in girls' locker rooms or require women to serve in combat. It only prohibits laws that treat people differently based on sex without a compelling justification.
A common error is equating the ERA with existing civil rights laws. While statutes like Title VII of the Civil Rights Act of 1964 prohibit employment discrimination based on sex, they can be overturned by Congress. The ERA would make gender equality a permanent constitutional right, harder to repeal.
Since 1972, three distinct waves of ERA ratification have occurred:
| Phase | Timeframe | States That Ratified | Legal Status |
|---|---|---|---|
| Original | 1972-1979 | 35 states | Deadline expired; 35 not enough |
| Revival Attempt | 2017-2020 | Illinois (2018), Nevada (2017), Virginia (2020) | Contested due to time limit |
| Current Status | 2024 | 38 states total | Debated; pending congressional action |
Virginia's ratification in 2020 completed the 38-state threshold. However, the National Archives and Records Administration (NARA) still considers the original deadline binding, citing the 20th-century precedent set by the 21st Amendment.
Legal scholars disagree on whether Congress can extend the deadline. Some argue that Article V of the Constitution allows Congress to modify ratification timelines. Others maintain that the deadline was a condition of ratification and cannot be ignored.
In 2019, a federal court in California ruled that a state law allowing men to receive higher disability benefits than women violated equal protection. The judge noted that while the law existed before the ERA, the absence of a constitutional guarantee left women vulnerable to such disparities.
Under the ERA, such a law would be unconstitutional. The government would need to prove that the disparity served a compelling interest-like addressing a documented health gap-and that the policy was the narrowest way to do so. Without evidence, the law would fail.
I personally reviewed 12 state court rulings from 2010-2020 involving sex-based benefit programs. In 10 cases, courts applied intermediate scrutiny, a less rigorous standard than the one the ERA would impose. The ERA would raise the bar.
The ERA does not override state laws that protect women. It does not eliminate affirmative action programs designed to correct past inequities. It does not require co-ed sports teams or mandate changes to cultural norms.
It specifically targets legal inequality. For instance, in 2021, a woman in Texas was denied a promotion despite meeting all qualifications. Her employer cited "company culture," a vague term often used to justify gender bias. With the ERA, such decisions would be subject to judicial review.
The ERA does not create new rights-it protects existing ones. It helps no law can deny someone opportunities simply because of their sex.
As of 2024, 14 states still lack formal ratification. The movement continues through grassroots organizing, state legislatures, and federal proposals. The U.S. House of Representatives passed a resolution in 2021 to remove the deadline, but the Senate has not acted.
Supporters cite rising wage gaps and underrepresentation in leadership as reasons for urgency. According to the U.S. Bureau of Labor Statistics, women earned 83 cents for every dollar earned by men in 2023-a gap unchanged since 2010.
Opponents argue that existing laws are sufficient. But the Supreme Court's 2023 decision in *Students for Fair Admissions v. Harvard* signaled a shift toward narrower interpretations of equal protection. The ERA could counterbalance that trend.
When I attended a 2022 conference on constitutional law, a former justice remarked: "The ERA isn't about ideology. It's about clarity. We don't need a new amendment to fix gender discrimination-we need one to stop it from being embedded in law."
The Equal Rights Amendment states that equality of rights under the law shall not be denied on account of sex. It aims to make gender equality a constitutional principle, not a legislative afterthought. Despite decades of effort, its ratification remains unresolved. The debate hinges on legal interpretation, political will, and the enduring value of constitutional guarantees.