The questions and answers contained on this page were developed out of conversations with League members, activists, and others. We hope they will serve as a guide to common questions on policy, implementation, and other issues as Leagues do their advocacy work.
What is the text of the ERA?
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Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
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Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
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Section 3: This amendment shall take effect two years after the date of ratification
What is the history of the ERA?
The Equal Rights Amendment was written in 1923 by Alice Paul, a leader of the women’s suffrage movement. It was introduced in Congress that same year with some slightly different wording, specifically naming “men and women.” In 1943 Paul rewrote the amendment to its current wording.
Since its inception in 1923, the ERA has been reintroduced in every Congress but made little progress until the 1970s. It’s important to note that for most of that time, Congress was comprised almost entirely of men. In the nearly 50 years between 1923 and 1970, only 10 women served in the Senate, with no more than 2 serving at the same time.
In 1970, a new class of women lawmakers pushed to make the ERA a top legislative priority. It was a steep climb as the House Judiciary Chair had refused to hold a hearing on the ERA for over 30 years, but the women succeeded. In March 1972, the amendment passed both chambers of Congress with bipartisan support far exceeding the two-thirds majorities required by the Constitution. Congress promptly sent the proposed amendment to the states for ratification with a seven-year deadline.
The seven-year deadline was later extended by Congress to June 30, 1982. When this deadline expired, only 35 of the necessary 38 states (the constitution requires three-fourths of states) had ratified the ERA, so it did not become a part of the U.S. Constitution. However, the ERA has continued to be reintroduced in every session of Congress since 1982.
In 2017, 2018 and 2019, Nevada, Illinois and Virginia, respectively, each ratified the ERA bringing the total of state ratifications to 38 – reaching the required threshold for a constitutional amendment.
Why did the ERA fall three states short in the 1970s and 80s?
Within a year of it passing Congress, 30 of the necessary 38 states acted to ratify the ERA. But then momentum slowed as conservative activists allied with the emerging religious right launched a campaign to stop the amendment. Phyllis Schlafly led much of the STOP ERA campaign and argued that the measure would lead to gender-neutral bathrooms, same-sex marriage, and women in military combat, among other things – which all came to fruition without an ERA.
The opposition campaign was very successful and support for the ERA eroded, particularly among Republicans. Though the GOP was the first party to endorse the ERA back in 1940, GOP lawmakers backed off the amendment leading to stagnation in the states.
By 1977, only 35 states had ratified the ERA. Though Congress voted to extend the ratification deadline by an additional three years, no new states signed on.
Who decides whether the ERA has reached the threshold for ratification?
The National Archives and Records Administration (NARA) oversees the constitutional amendment process. Once a joint resolution is passed by Congress, it is sent to NARA Office of the Federal Registry (OFR) for processing and publication. Then it goes to the states for ratification, where it is sent through the state ratification process. Once a state ratifies the amendment, the state sends a certified copy of the action back to OFR, who retains the documents until an amendment passes or fails. All final documents are sent to NARA for preservation.
When Virginia ratified the ERA, the National Archivist reached out to the Department of Justice (DOJ) to issue an opinion on its validity. On January 8, the Justice Department’s Office of Legal Counsel (OLC) issued an opinion arguing that the deadline set by Congress is binding and that the ERA “is no longer pending before the States.” The DOJ opinion actually rejects the conclusion of the 1977 OLC opinion, which approved of the earlier extension of the ERA’s ratification deadline. In response, the National Archives and Records Administration has said that the archivist of the United States, Daniel Ferriero, will not certify Virginia’s ratification or add the ERA to the Constitution until a federal court issues an order. (Ferriero had previously accepted the ratifications from both Nevada and Illinois.)
Is the Department of Justice right? Does it matter that three states ratified the ERA after the deadline?
Congress has the legal authority to set and remove deadlines, and there is currently legislation moving in Congress to remove the deadline which would make the recent ERA ratifications valid. Some suggest that setting/removing deadlines are a judicial decision but, precedent shows it is a decision for the legislative branch. A 1939 Supreme Court, Coleman v Miller, case ruled that the question of whether an amendment has been ratified in a reasonable period of time is a “political question” best left in the hands of Congress, not the courts. Under a 1984 law, the Archivist of the United States is charged with issuing a formal certification after three-quarters of the states have ratified an amendment. When there has been doubt over the validity of an amendment, Congress has acted to declare it valid. This occurred most recently in 1992 when the states ratified the 27th Amendment, 203 years after Congress proposed it.
S.J. Res 6 is the Senate version of the aforementioned legislation; the house companion bill H.J. Res. 79 has already passed.
Are there lawsuits going on over the ratification?
Virginia, Illinois and Nevada Attorneys General sued the National Archivist for not recording Virginia as the 38th state. Alabama, Louisiana and South Dakota filed a lawsuit AGAINST ratification arguing that the deadline for ratification expired in 1982, when only 35 states had signed off, but they recently dropped their lawsuit. Human rights group, Equal Means Equal, also filed a lawsuit with a group of Massachusetts students, and a woman attacked on a college campus, arguing that congressional deadlines for states to ratify the ERA are unconstitutional.
With the current wording of the amendment, how will that affect trans and non-binary people?
The ERA seeks to end discrimination on the basis of sex, and while the legal definitions around that are still not entirely clear, we do know that people of all gender identities would benefit tremendously from the ERA’s ratification. By giving additional scrutiny to “sex” when addressing issues of discrimination, the ERA could remedy symptoms of structural oppression such as pregnancy discrimination, equal pay, workplace harassment, domestic violence, and limited access to healthcare. All of these issues are not ones that are ascribed to the gender binary; they are issues that affect all people from all gender identities who would now be protected under the ERA. Organizations that represent the needs of members of the LGBTQ community, and those outside the gender binary are a part of our ERA coalition, and we stand with them in making sure that when the ERA is ratified the fight to end discrimination is met on all fronts
Are there any states who have a state ERA which have made laws restricting abortion?
Yes, for example Pennsylvania’s constitution has an ERA but the state Supreme Court decided that restrictions on Medicaid funding of abortions were constitutional. The U.S. Supreme Court in separate litigation (Planned Parenthood v. Casey, 1992) upheld Pennsylvania’s restrictions on abortion under the federal due process clause.
How does selective service or the draft relate to the ERA?
Currently, women are not protected against involuntary military service. Congress already has the power to draft women as well as men into the military and the Senate actually debated drafting nurses during WWII in preparation for a possible invasion of Japan. However, as things stand now, only males are required to register with the Selective Service System and because the registration requirement classifies people based on the sex assigned at birth, transgender women are required to register while transgender men are not. Most importantly though, there is no longer a draft and even without an ERA, in recent years the Department of Defense planning memos and Congressional bills dealing with the draft or national service have included both men and women.
With the opening of all combat positions to women, it is very likely that a reactivated male-only draft system would be legally challenged as a form of sex discrimination and would most likely be found unconstitutional, even without an ERA in the Constitution. Of course, it is highly unlikely that a draft will be reinstituted and there would be strong opposition from all genders if it did.
Once the amendment is ratified, why won’t it take effect for two years and what are the implications of that?
The amendment won’t take effect for two years because that is how the amendment was originally drafted. When drafting legislation or deciding cases in court, Congress and the Judiciary, respectively, have to use existing legislation, constitutional amendments or judicial precedent to derive authority for the new laws or judicial decisions. The delay in effect of the amendment means the ERA cannot be used as legal authority to bolster new legislation or in deciding court cases until two years after ratification.
How can I find out if my Senator supports the bill to remove the timeline on the ERA?
To find the most up to date information on whether your senator has co-sponsored S.J. Res 6, which removes the deadline for ratification, check congress.gov.
What are the organizations in the Equal Rights Amendment Coalition? How is LWV interacting and supporting the ERA coalition?
There are 36 organizations in the ERA coalition; the members can be viewed here.
Why did the League of Women Voters at first oppose the ERA?
The League did not initially support the ERA because the organization feared that the Amendment would strike down the so-called women's 'protective laws' that LWV had previously worked hard to enact. However, the League saw these laws didn't protect as much as they prevented women from getting jobs and/or promotions. Most of these laws were struck down with the enactment of 1964 Civil Rights Act, Title VII. The other area of protective legislation related to alimony and child support laws. In the early 1970s, in anticipation of the ERA, 45 States changed their laws to read "either party could be awarded alimony.” In 1978, in a case called Orr v Orr, the Supreme Court struck down the remaining women only alimony laws. A similar change occurred with 'mother only' child support laws. These laws have been changed to read 'Support goes to the custodial parent or the parent with whom the child spends the most time'. With the change in most gender specific laws, LWV’s stance changed. The League supported the Equal Rights Amendment (ERA) in 1972, fighting hard for ratification by the states and has continued to work on ratification in the states.