Is the ERA in jeopardy?

It’s been over 10 months since President Joe Biden declared the Equal Rights Amendment at the 28^th Amendment to the U.S. Constitution and the “law of the land”.    Unfortunately, the ERA has still not been published by the Archivist.   And sadly, the future of the ERA does not look overly promising.  AND it’s now needed more than ever!  

Why Needed

Since Trump took office, we have seen more and more laws protecting women's rights replaced by new laws that have a negative impact on women.    We are also seeing the Supreme Court make decisions, like the devastating overturning of Roe vs Wade.    Women need to be protected under the U.S. Constitution which the Equal Rights Amendment provides.    That is the foundation for court decisions in favor of women’s rights and laws that enforce women’s rights.   We’ve seen it is too easy to change laws and sign executive orders.    It is hard to change the U.S. Constitution – which why the ERA is so important.

How Did We Get Here

Our founding fathers intentionally left women out of the Constitution in 1776.   The ERA was first introduced in 1923.   It finally passed the House and Senate in 1972 and was sent to the states to ratify.    It had a time limit of 7 years in the preamble and then it was extended by 3 years.   This is the ‘killer clause’ that most legal scholars say is not binding since it was not part of the amendment nor an option in Article V of the Constitution.   Virginia ratified the amendment in 2020, becoming the 38^th and last state needed.   Unfortunately, then President Trump told the Department of Justice to forbid the U.S. Archivist from publishing the ERA despite it had met all the constitutional requirements, using the deadline from the preamble as the rationale.   President Biden did nothing to help until his last workday in office.  Trump fired the Archivist as one of his first acts and assigned Marco Rubio as the acting Archivist.

If you are interested in learning more about the history, click here.

Where Are We Now

We’re in limbo.   We have many that state the ERA is already part of the Constitution.   We have some that say only Congress can rule that it is ratified.   We have others that say only the Supreme Court can make the final decision.   And we have some, that fear that Trump will issue an executive order that it is dead.   It’s hard to guess which branch of government will do something first.

Legislative Side

Federal Level

• HJRes 80 - confirming ERA is part of the U.S. Constitution and must be published
• SJRes 38 - confirming ERA is part of the U.S. Constitution and must be published

State Level

• AZ – ratification of U.S. ERA
• FL – ratification of U.S. ERA
• GA – ratification of U.S. ERA
• MN – add ERA to state Constitution

Judicial Side

There are 3 court cases using ERA as grounds against discrimination:

• Equal Means Equal vs Donald J Trump – hearing before the Massachusetts U.S. District Court on Dec 16, 2025
• Valame vs Trump – lost at the U.S. District court in NC, appeal filed with Supreme Court
• Manning vs - filed with U.S. District Court in DC

Executive Side

So far, nothing from Trump on ERA.

Where Are We Headed

I wish I knew.  I don’t see the federal bills passing under the Republicans.  There are a few Republican supporters but sadly equality for women is now a partisan issue no longer supported by most Republicans.

My biggest fear is that it will be challenged at the Supreme Court level.  With this Supreme Court, there is a chance they could side with the minority of legal scholars and declare the ‘killer clause’ with the deadline in the preamble stands and that the ERA is dead.   This would mean the whole process would have to start over – from passage by both 2/3’s vote by both the U.S. House and U.S. Senate – and then sent to the states for ratification by 3/4’s of the states, that being 38 states.   That won’t happen in my lifetime and fear it would never happen unless the political climate changes in the U.S.A.

What Can We Do

We can lobby for our U.S. representatives to support the 2 ERA bills, although extremely unlikely we can get 60 Senators to base the bill.   We need to ‘hope and pray’ that the Supreme Court does not make a fatal ruling on the ERA.  (We can’t lobby the Supreme Court Justices.)   We must elect more pro-ERA candidates up and down the ballot.  

Trying to be hopeful,

Shari Temple
ERA Task Force Leader

[email protected]