Center for American Progress

The ERA Solidifies Women’s Rights in the Constitution as the 28th Amendment
Article

The ERA Solidifies Women’s Rights in the Constitution as the 28th Amendment

The federal government has finally recognized the Equal Rights Amendment as the 28th Amendment to the U.S. Constitution, ushering in a whole new era for gender parity in this country.

A large crowd of women cheers a speaker at the Lincoln Memorial, during a rally for passage of the Equal Rights Amendment.
A large crowd of women cheers a speaker at the Lincoln Memorial, during a rally for passage of the Equal Rights Amendment, October 1981. (Getty/Bettmann)

Today, President Joe Biden formally recognized the Equal Rights Amendment (ERA) as the 28th Amendment to the U.S. Constitution. The ERA—reads, “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 is the most substantive advancement of women’s rights in this country since the 19th amendment, which gave women the constitutional right to vote in 1920. The United States now joins the 85 percent of countries in the world that have a gender provision in their federal constitutions. The import and potential impact of the new 28th Amendment cannot be overstated.

Not only did the president recognize the amendment’s ratification, but he did so with the support of hundreds of thousands of Americans. In addition to the 38 states that ratified the ERA as the 28th amendment, more than 200,000 Americans signed a petition this week calling for this specific act to solidify constitutional equality. Data for Progress polling from December showed 61 percent of voters would support President Biden publishing the Equal Rights Amendment and adopting it as the 28th Amendment to the Constitution. And a 2020 Pew Research Center poll found that 78 percent of Americans believed that the ERA should be a part of the Constitution, even if they didn’t identify as feminists. With this official recognition today, the will of the people has been vindicated.

This field is hidden when viewing the form

Default Opt Ins

This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form

Variable Opt Ins

This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form

What happens now: Five questions about the new 28th Amendment

Who does the 28th Amendment cover?

All people. The full text of the operative section of the 28th Amendment reads in full, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” In nonlegal, terms this means it will cover anyone who experiences discrimination on the basis of sex—women, men, and anyone on the gender spectrum, including trans people. It will also cover people who experience discrimination on the basis of sexual orientation.

What will the 28th Amendment do?

Make possible equal citizenship for all. This constitutional amendment is a permanent foundation upon which we can build a gender-equal future in this country. Primarily, it will help in two areas: litigation and legislation. Currently, it is difficult for women to win in court if they experience gender discrimination because it is not explicitly prohibited in the Constitution. Altering the text of the Constitution itself will improve outcomes when women seek legal redress for things like pay and employment discrimination. The second clause of the 28th Amendment states, “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” This gives Congress a brand-new constitutional hook to pass laws that protect women, girls, and all marginalized genders in this country. It lays the groundwork for robust federal laws that will not be ruled unconstitutional, as was the case with the civil remedy victims could use to sue their perpetrators contained in the original version of the Violence Against Women Act (VAWA), for example. Women in this country could get laws that help functionally eliminate the gender wage gap as well as stronger laws to combat pregnancy discrimination in the workplace. Another example of the power and potential of the 28th Amendment is in restoring the federal constitutional right to access abortion care. State-level ERAs have already been used to strike down abortion bans in states such as Connecticut, New Mexico, Pennsylvania, and Nevada. The new federal ERA can be similarly leveraged to enshrine abortion access nationwide.

Is this a permanent amendment?

Yes. Amendments to the Constitution are permanent and cannot be reversed. The only exception to this is by the full ratification of another separate amendment, as happened with Prohibition. According to Article 5 of the Constitution, amendments must be passed by two-thirds of each house of Congress, which happened March 22, 1972, and ratified by three-fourths of the states, or 38, which happened on January 27, 2020. It is now a permanent part of the Constitution and recognized by the federal government as such.

Will the validity of the 28th Amendment be litigated?

Most Likely. The process of amending the Constitution is incredibly difficult. This is why it has only been previously amended 27 times. Throughout U.S. constitutional history, procedural questions and doubt around ratified amendments have been the norm and, over time, there have been concerns about the validity of many amendments that are now securely in place as accepted parts of the Constitution. Although the ERA has met all the requirements laid out in Article 5 to become an amendment, it is very likely its validity will be challenged in court. However, the Constitution affords no role in the ratification process to the Supreme Court. In a 1939 case, four justices in a key decision on another amendment strongly suggested that disputes over amendments were fundamentally political questions better left to the political branches—not the courts. The ERA has strong legal arguments to overcome the procedural claims against it, which is why the American Bar Association—an independent, nonpartisan association of the nation’s lawyers—passed a resolution in August affirming that the ERA has been appropriately ratified as the 28th Amendment. Plus, there is no role in Article 5 whatsoever for the judicial branch in the amendment process. If the U.S. Supreme Court intervenes to remove a ratified amendment from the Constitution, such a move would be unconstitutional and run counter to long standing precedent.

Do we still need state-level ERAs?

Yes. State-level Equal Rights Amendments exist in 28 states. Modern ERAs have been passed recently in Nevada, in 2022, and New York, in 2024. These state-level ERAs are far more comprehensive than the federal ERA and include categories such as: race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, as well as ancestry or national origin. Therefore, while the federal 28th Amendment will cover state action that discriminates on the basis of sex, the state ERAs go further and are still needed.

Conclusion

The struggle for women’s equity has been more than 100 years in the making. Hundreds of thousands of women have fought for the ERA over many decades. This is a victory for those who came before us and for every American living today. Gender equality is now written into the Constitution for all to see. The 28th Amendment will be here 100 years from now and far into the future as a tool to protect Americans from—and prevent—gender discrimination.

The positions of American Progress, and our policy experts, are independent, and the findings and conclusions presented are those of American Progress alone. A full list of supporters is available here. American Progress would like to acknowledge the many generous supporters who make our work possible.

Author

Kate Kelly

Senior Director, Women\'s Initiative

This field is hidden when viewing the form

Default Opt Ins

This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form

Variable Opt Ins

This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form
This field is hidden when viewing the form

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.