Biden declares Equal Rights Amendment US law, even though it is not

By Jeff Mason and Susan Heavey

WASHINGTON (Reuters) - U.S. President Joe Biden called the Equal Rights Amendment "the law of the land," on Friday, backing an effort to enshrine the change into the U.S. Constitution even though it long ago failed to secure the approval of enough states to become an amendment.

"Today, I affirmed the Equal Rights Amendment to have cleared all the necessary hurdles to be added to the U.S. Constitution now," Biden said. "The Equal Rights Amendment is the law of the land now. It's the 28th amendment to the Constitution now."

It was unclear what practical impact Biden's comments might have. The White House issued his statement just three days before he leaves office, handing off to President-elect Donald Trump on Monday. In December the National Archivist, which is tasked with certifying and publishing new amendments, said it could not add the ERA to the U.S. Constitution.

The ERA declares that "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex."

Its supporters say it is needed to protect against sexual discrimination and would help women achieve equal pay. Opponents note that the original timetable to have it become part of the Constitution has passed and argue that the amendment is no longer needed.

Republicans and Democrats have been fighting for years over the viability of the amendment. In response to a reporters' question, Biden said Friday he had not acted sooner because "I had to get all the facts."

The ERA was proposed in 1923 and passed Congress in 1972. Under U.S. law, amendments to the Constitution must be ratified by three-fourths, or 38 of the 50, state legislatures. They do not require presidential approval. By a 1982 deadline, only 35 states had ratified the amendment.

It was not until 2020 that Virginia became the 38th state to ratify it. Opponents of enshrining the law said the deadline to include it in the Constitution had passed, while supporters argued the Constitution has no guidelines for how long states can take to ratify an amendment.

Trump is not expected to support the amendment. In 2020, the Trump administration issued a legal opinion that it was too late to renew an effort for it to be ratified and any amendment process would need to be started anew.

Most recently in 2023 the U.S. Senate blocked a measure to remove the 1982 deadline. A full century after the law was proposed, it voted 51-47 in favor of removing the deadline, nine votes shy of the 60 needed to clear the 100-member chamber's filibuster hurdle. Two Republican women joined Democrats to vote in favor.

The National Archivist weighed in on Dec. 17, 2024, saying the ERA cannot be certified as part of the Constitution due to "established legal, judicial and procedural decisions."

In 2023, the median pay for U.S. women working full-time year-round jobs was 84 cents for every dollar earned by men, according to Department of Labor reports. Black women made 69 cents for every white man's dollar.

(Reporting by Susan Heavey; Editing by Heather Timmons and David Gregorio)