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Joe Biden is claiming to recognize a new constitutional amendment to enshrine protections against sex discrimination, but it’s unclear whether the president intends to take any action to publish it before Donald Trump enters office.
The Equal Rights Amendment — which would become the nation’s 28th constitutional amendment — would explicitly protect Americans from discrimination on the basis of sex, which advocates argue could provide firm constitutional basis to overturn state-level anti-abortion laws in the wake of the Supreme Court’s landmark decision to overturn Roe v Wade.
In a statement released by the White House on Friday, Biden said he agrees with the American Bar Association and a host of legal scholars who say the Virginia legislature’s act to ratify the ERA in 2020 — the 38th state legislature to do so — means that the proposed amendment has met the threshold needed for it to be officially recognized as part of the constitution.
Biden, who noted that he has “long been clear that no one should be discriminated against based on their sex” and stressed that he’s supported the effort to amend the constitution to prohibit such discrimination for over a half-century, said the United States “must affirm and protect women’s full equality once and for all.”
“It is long past time to recognize the will of the American people,” he said. “In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.”
While the president’s statement is sure to be welcomed by advocates. senior administration officials could not say what, if anything, Biden will do beyond making the statement itself.
Because Biden’s statement is just a statement and not an order, proclamation or other presidential action, it carries absolutely zero legal force.
In order for the ERA to be actually considered part of the constitution, the Archivist of the United States would have to publish it officially as the 28th Amendment. A senior administration official who briefed reporters on condition of anonymity said the president was not directing the archivist to publish the amendment.
The official refused to say whether there had been any communications with the archivist’s office when pressed on the matter by reporters during a briefing early Monday, and repeatedly demurred when asked about the meaning or effect of the president’s statement.
Instead, the official repeatedly told reporters that it’s Biden’s view that the amendment has been ratified since 2020, when Virginia’s state legislature became the 38th to approve it.
“He’s using his power of the presidency to make it clear that he believes and he agrees with leading constitutional scholars and the American Bar Association, not that it should be but that it is the 28th amendment of the constitution,” said the official.
Yet Biden’s newfound view on the ERA contradicts his administration’s legal work over the last four years. During numerous legal cases in which the federal government participated, not a single Department of Justice attorney ever argued that the amendment’s prohibition against sex discrimination should be recognized as part of the constitution.
The official could not explain the discrepancy between Biden’s claim that Virginia’s 2020 ratification put the amendment in force and the administration’s inaction during his term. They also said the president’s statement was influenced by the ABA’s recent opinion on the ERA as well as opinions of “leading constitutional scholars” who have said the amendment “has cleared all necessary hurdles to be formally added to the Constitution.
Yet at the same time, the official also admitted to reporters that it would “ultimately … be up to the courts to interpret this and their view of the Equal Rights Amendment.”
The president’s 11th hour announcement is sure to be met with a firestorm of criticism from conservatives who’ve long opposed the amendment, which was first approved by Congress in 1972.
At the time, right-wing groups claimed that enshrining a prohibition against sex discrimination into the nation’s founding document would erode traditional protections for women and bring about mandates for single-sex bathrooms and the wholesale drafting of women into America’s armed forces.
When the House and Senate approved the joint resolution laying out the amendment, the document included a seven-year deadline for 38 states to ratify it. That deadline was later extended by legislation, but legal experts have disagreed as to whether that extension was legally valid. Other legal experts have opined that the deadline had no legal force in the first place.
Advocates have argued that such an amendment would ensure protections for abortion access and provide a strong constitutional basis against anti-abortion laws that have swarmed the nation in the wake of the Supreme Court’s stunning 2022 decision to revoke the right to abortion care by overturning Roe v Wade.
Democratic members of Congress and civil rights group have urged the president to publish the amendment and enshrine sex discrimination protections before Trump returns to the White House, among many of the last-minute pleas for bold actions from the president to brace the nation for the president-elect.
Senator Kristen Gillibrand of New York also launched a one-woman lobbying effort to press Biden on the issue, including meeting with Biden’s chief of staff and top advisers and using brief interactions with the president to mention the ERA.
A letter from more than 120 House Democrats, led by now-former Rep. Cori Bush and Rep. Ayanna Pressley, called on Biden to demand that the archivist publish the amendment.
Both houses of Congress approved the amendment in 1972, but it was not ratified by the states in time to be added to the Constitution. Democrats have advanced a legal theory that a deadline for adding an already-approved amendment is unconstitutional, and that all Biden has to do is make a phone call.
In the letter, Democrats argue that the ERA has already met the requirements to become an amendment after its passage in Congress and ratification by three-fourths of states.
The House passed the ERA in 1971 by an overwhelming margin of 354-24. It passed in the Senate the following year with only eight no votes.
But it took nearly five decades for at least 38 states to ratify it.
Last month, following speculation that Biden would amend the constitution before leaving office, Archivist of the United States Colleen Shogan and Deputy Archivist William Bosanko said in a joint statement that the ERA “cannot be certified as part of the Constitution due to established legal, judicial, and procedural decisions.”
The courts, Department of Justice and White House counsel have “affirmed that the ratification deadlines established by Congress for the ERA are valid,” they wrote.
“Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment,” they added. “As the leaders of the National Archives, we will abide by these legal precedents and support the constitutional framework in which we operate.”
