The ERA and the Path Forward: What Happens After Biden’s Declaration? 

In January 2025, Former President Biden issued a White House statement recognizing the Equal Rights Amendment (ERA) as the “law of the land” and 28th Amendment to the US Constitution. This marked a pivotal moment in a century-long effort to secure constitutional protections for equality in the United States. However, Biden’s declaration does not mean the effort to achieve constitutional equality is over. Just days after leaving office, his declaration was removed from the White House website, underscoring the reality of continuing pushback against the validity of the ERA.

At the 69th Session of the United Nations Commission on the Status of Women (CSW), in March 2025, Equality Now and the ERA Coalition convened domestic and international legal experts and advocates to reflect on this moment and chart a path forward. The event made clear that, while the road to universal recognition and implementation of the ERA remains uncertain, it will require a strategic and multi-pronged approach, backed by scholarly expertise, public pressure, and relentless advocacy. As Mona Sinha, the Executive Director of Equality Now, said in her opening remarks, “This victory is not an endpoint but a call to action–we have to push for the universal recognition of the ERA at all levels.”

Using the ERA: What does the law say?

Former President Biden’s message said it all: “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.”

The ERA, first proposed in 1923, met the requirements for constitutional ratification under Article V, the procedure to amend the US Constitution, in 2020. Constitutional scholars and professional associations, including the American Bar Association, have affirmed that the ERA is now valid and enforceable. However, the question of recognition has become intertwined with political resistance and legal technicalities, leading to confusion and continued questioning of the ERA’s legitimacy.

As a result, the ERA now occupies a legal grey area: by law, it is the 28th Amendment to the US Constitution, but in practice, its enforceability remains uncertain.

Navigating Congress, the Courts, and the Current Legal Landscape 

For the ERA to fulfill its potential, proponents must navigate a volatile political and judicial climate: a Supreme Court majority that interprets the Constitution based on its original 18th century meaning– rather than evolving societal values, a divided and conservative Congress, and an executive branch that has repeatedly targeted and pushed for the rollback of gender protections.

Executive Order 14168, is a clear example of the new administration’s efforts to erode these protections. The order directs federal agencies to recognize only “biological sex assigned at birth.” This action directly contradicts the ERA’s inclusive vision of equality and effectively excludes transgender and intersex individuals from federal protections against discrimination.

In response, advocates are pursuing multiple avenues to reinforce the ERA’s validity, each one reinforcing the next to create a strong legal foundation.

In March 2025, both the House and Senate introduced bipartisan resolutions to affirm that the ERA is validly the 28th Amendment to the U.S. Constitution. If passed, such measures would be powerful tools in establishing a legislative record and shaping the political narrative around the ERA’s legitimacy.

Today, the effort to see the ERA fully realized will require more than navigating legal nuances, it demands political will, a functional democracy where law and order are paramount, and a collective commitment to gender equality.

State Level ERAs

While the federal ERA remains under scrutiny, states are quietly leading the way. Twenty-nine states already have gender equality provisions in their constitutions, many of which were added during the original push for ratification of the federal ERA in the 1970s. Today, these provisions are being revived and reimagined.

New and updated state ERAs, like Nevada’s 2022 amendment and the 2024 ERA in New York, are tackling inequality through a broader, more intersectional lens, explicitly addressing not only sex, but also gender identity, race, disability, pregnancy and reproductive rights, and other characteristics.

“State constitutions and state courts play a really big part in shaping the rights dialogue and debate,…what’s happening at the State level is the meaning making.” – Ting Ting Cheng, The ERA Project, Columbia Law School 

Advocates are increasingly raising state ERAs in litigation to challenge discriminatory laws and policies. From reproductive rights to workplace protections, these provisions are proving powerful tools–and laying important groundwork for the eventual interpretation of the federal ERA.

As Ting Ting Cheng noted during the CSW69 event, “The work being done at the state level ensures the ERA evolves and stays relevant to today’s realities.  Legal interpretations of state ERAs will inevitably influence federal jurisprudence, and the more lawyers and judges engage with them, the stronger the foundation for applying the federal ERA will be when the time comes.”

Activist Momentum: The Need for Continuous Pressure & Public Education

While legal strategy is essential, public understanding of the ERA and its potential to protect the rights of all US citizens is equally critical to ensure the momentum generated by Biden’s statement does not fade. As many as 78 percent of people in the US  are still unaware that gender equality is not already guaranteed under the Constitution.

Activists must continue pushing for recognition of the ERA at every level—through public campaigns, media engagement, and direct pressure on decision-makers. The effort to secure constitutional protections has almost always been driven by public demand, and this moment is no different.

Constitutional scholars also have a pivotal role to play. Their expertise is essential in building a strong intellectual foundation for the argument that the ERA is valid and enforceable. These scholars can also provide necessary rebuttals to legal challenges that question the Amendment’s ratification process.

As we push for comprehensive recognition and application of the ERA, activists can continue to apply pressure on decision makers by testifying during congressional hearings, raising awareness through the media and public discourse, reaching out to lawmakers, and strengthening coalitions.

International Collaboration and Accountability

The ERA is part of the broader international dialogue on human rights and achieving gender equality. At the CSW 69 event, panelists emphasized how constitutional gender equality provisions serve three key functions globally: they overturn discriminatory laws, provide a foundation for future positive legislation, and establish expressive norms about a country’s values.

Aleta Sprague, the Director of Legal Analysis and Communication at WORLD, explained during CSW69 how citizens can use those provisions; “Gender equality provisions in a country’s constitution help set norms and communicative values. They create a mechanism for people to hold their governments accountable.”

The international community, including the United Nations Human Rights Committee (UNHRC), has repeatedly called on the US to enshrine equal protections into its Constitution and has highlighted the US’s failure to ratify the ERA as a significant gap in human rights protections.

However, the US’s withdrawal from certain UN organizations, including the Human Rights Council, raises concerns about its commitment to international obligations under the International Covenant on Civil and Political Rights (ICCPR), which mandates equal protection under the law.

This November, the international community will once again have the opportunity to weigh in on the human rights progress of the US during the Universal Periodic Review process, a peer-to-peer evaluation of member states on other states’ human rights records, offering a unique opportunity to hold the US accountable on the global stage.

Equality Now and the ERA Coalition have submitted a stakeholder report calling for the recognition and enforcement of the ERA, representing civil society organizations’ ability to inform the review process.

International pressure can be a valuable tool in reinforcing domestic efforts, reminding political leaders that constitutional protections are not just a national concern, but a fundamental human rights issue recognized worldwide.

The Effort Continues

President Biden’s statement was not the end of the road but rather a significant milestone. The effort to cement the ERA as a universally recognized constitutional amendment will require legal victories, scholarly support, relentless activism, and political will. Every step forward brings the nation closer to a future where equality under the law is not just an aspiration but an undeniable reality.

“Legal equality is the foundation of democracy, and the US must turn its words into deeds” – Mona Sinha.