President Biden declares the Equal Rights Amendment as the 28th Amendment to the US Constitution: Here’s what it could mean for women and girls 

President Biden’s decisive action on January 17th declaring the Equal Rights Amendment (ERA) as the 28th Amendment to the US Constitution marks a historic milestone in the century-long fight for gender equality in the United States. By recognizing the principle of equality on the basis of sex as “the law of the land,” the ERA has the potential to bring transformative change across numerous critical areas of life for all women and girls. 

With most constitutional amendments, the final step to ensure that states are aware the Constitution has changed is publication by the National Archivist; however in this case, as explained by Senator Kirsten Gillibrand, while President Biden did not direct the National Archivist to publish, as the leader of the United States his announcement should ultimately “supersede” her purely ministerial role. This marks a historic and significant step forward for all of the activists and women’s rights groups who have been fighting for such recognition since Virginia became the 38th state to ratify in 2020. As a member of the ERA Coalition, we will continue to call upon the National Archivist to do her job, while recognizing that the ERA is now the law of the land.

Over recent years, as we’ve campaigned for the incorporation of the ERA, our legal experts have analyzed its potential impacts on gender equality. Here’s a closer look at what the ERA could mean for women, girls, and all people across the United States: 

International Law Compliance and the ERA 

Globally, 85% of UN Member States already explicitly protect against sex and/or gender-based discrimination in their constitutions and the United States remained a global outlier. In addition, the US violated international law, including its obligations under the International Covenant on Civil and Political Rights (ICCPR). Following a 2023 submission by Equality Now and our partners, the UN Human Rights Committee urged the United States to “guarantee protection against sex and gender-based discrimination in its Constitution,” including through the ERA. Just last month, the UN Special Rapporteur on Violence Against Women personally called on President Biden to act and ensure the ERA is published.

By affirming the ERA as part of its Constitution, President Biden brings the US closer to joining the global community in denouncing discrimination on the basis of sex and realizing gender equality as a fundamental human right​.

Reproductive Rights and the ERA 

Bodily autonomy in the US has been under increasing attack since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade. Without constitutional protection, access to abortion, IVF, and other reproductive healthcare remain vulnerable, disproportionately impacting women of color and economically disadvantaged communities.

The ERA should provide a strong legal framework for defending these rights by framing access to reproductive healthcare as fundamental to realizing gender equality and preventing sex-based discrimination. The ERA would directly impact the way courts decide abortion-related and other reproductive rights cases, based on equality rather than privacy, increasing the level of judicial review to strict scrutiny. This would both enable and encourage the legislative and judicial branches to defend against restrictive abortion bans as well as extend protections to safeguard access to reproductive rights and health care.

Universal Protection and Legal Consistency under the ERA 

Until now, the fight for gender equality in the US has relied on a patchwork of federal and state laws that are vulnerable to repeal or narrow interpretation. The ERA will provide a foundational legal framework, ensuring protections against sex-based discrimination for everyone across the country.

For example, states like Pennsylvania have already demonstrated the potential utility that could come from a federal ERA. In Allegheny Reproductive Health Center v. Pennsylvania DHS, the Pennsylvania Supreme Court ruled that abortion access must be considered through the lens of sex discrimination under the state’s ERA. A federal ERA could ensure similar protections nationwide​. 

Gender-Based Violence and the ERA 

One in six women in the US will experience sexual violence in her lifetime, yet laws addressing gender-based violence (GBV) remain inconsistent and inadequately enforced. With the ERA, courts would be required to view GBV as a form of sex-based discrimination and apply the highest level of judicial scrutiny. This could strengthen the Violence against Women Act (VAWA) and pave the way for the implementation of robust legal remedies for survivors to access justice and prevent further injustices​.

Child Marriage and the ERA 

Shockingly, child marriage remains legal in 37 US states. Between 2000 and 2018, nearly 300,000 children—mostly girls—were married in the US, often to adult men. Many of these marriages followed incidents of sexual violence, forcing young girls into harmful unions instead of providing them with justice and support. 

The ERA would empower courts to strike down state laws permitting child marriage. With the ERA, laws that allow marriage under the age of 18 could be contested as a form of sex-based discrimination–due to their disproportionately negative impact on girls. The Constitution could finally provide a comprehensive path to pass laws at the federal level protecting girls from child marriage nationwide.

Female Genital Mutilation (FGM) and the ERA 

Statistics released by the Population Reference Bureau in 2013 estimate that 513,000 women and girls across the United States are at risk of or are living with female genital mutilation, resulting in lifelong health problems. Regardless of race or ethnicity, women and girls in the US may be subjected to FGM domestically or brought abroad–a practice known as “vacation cutting.”  Updated data on prevalence rates is urgently required.

Before the most recent federal anti-FGM law was passed in 2021, courts struck down a previous statute on the basis that  it did not meet constitutional requirements under the Commerce Clause and Congress lacked the constitutional authority to pass such a law. With the ERA as part of the Constitution, Congress would have a clear path to pass protectionist laws against FGM and prevent future rollback. 

Economic Equality and the ERA 

Economic inequality remains a significant problem in the US, with women earning only 84 cents for every dollar earned by men, and women of color earning even less—67 cents for Black women and 57 cents for Latina women. Additionally, caregiving responsibilities most often fall on women, exacerbating wage gaps and limiting career opportunities.

The ERA would grant the legislative branch authority to enact positive protections for economic equality. It could allow for the enactment of laws mandating equal pay and paid family leave. For example, in Ledbetter v. Goodyear Tire & Rubber Co., a sex-based pay discrimination case, the Supreme Court ruled against Lilly Ledbetter on procedural grounds due to the specific statute under which she had to bring her claim. Had she been able to bring her claim under the ERA, she might have had a stronger legal basis to challenge such discriminatory pay practices.

Caregiving Rights and the ERA 

Care work, both paid and unpaid, is overwhelmingly performed by women. This imbalance stems from deeply ingrained stereotypes perpetuated by a lack of gender equality. In the US, there is no universal paid family leave, and caregivers often face low wages, job insecurity, and a lack of legal protections.

International examples highlight the importance of constitutional protections like the ERA in challenging traditional gender norms around giving and receiving care.  In South Africa in 2023, for example, a court held that statutory provisions granting mothers four months of maternity leave and fathers 10 days of parental leave were unconstitutional under the country’s constitutional equality provision. The court emphasized that longstanding gender norms are not a legitimate reason to discriminate on the basis of sex. Similarly, the ERA could support reforms such as universal paid leave and greater protections for caregivers in the US​.

LGBTQ+ Rights and the ERA 

The ERA also has significant implications for LGBTQ+ rights. In Bostock v. Clayton County, the Supreme Court ruled that “sex discrimination” under Title VII of the Civil Rights Act includes discrimination based on sexual orientation and gender identity. However, without explicit constitutional protections, such rulings remain vulnerable to reversal.

The ERA would strengthen legal arguments for LGBTQ+ rights, ensuring protections against discrimination in employment, healthcare, and more. For example, it could be used to overturn laws that already exist in many states that ban transgender youth, and in some cases adults, from accessing lifesaving, gender-affirming care, and prevent new ones from being passed.  

The ERA is more than a legal milestone—it’s a transformative tool to ensure gender equality for all people in the United States. From protecting reproductive rights to addressing economic inequality and ending gender-based violence, the ERA has the potential to create a more just and equitable society for everyone.  

The work isn’t over. Advocates and policymakers must now focus on turning the promises of the ERA into actionable change. Equality Now will continue to work with lawmakers, legal professionals, and advocates to bring the ERA to life and ensure it is a catalyst for meaningful, lasting change.