Coalition Pressures Biden to Declare Long-Stalled Equal Rights Amendment the Law of the Land

Thirty nonprofit advocacy organizations, including many pro-abortion and pro-trans groups, have joined forces to urge President Joe Biden to “publish” the 1972 Equal Rights Amendment (ERA).
The advocates contend that publishing is the last obstacle in the long battle to make the ERA the law of the land.
Opponents of the ERA point to the fact that the amendment failed to obtain ratification by the requisite number of states within the congressionally prescribed time frame.
They said that publishing at this time would be extra-constitutional and contrary to limited court precedent and would ignore the advice of the Department of Justice.
Upon ratification of a proposed amendment, a state must send an official notice of its action to the national archivist, who sends it on to the Office of the Federal Register (OFR) to determine if the documents are legally sufficient.
When the OFR receives official notices of ratification from three-fourths of the 50 states (38), it writes a proclamation that is certified by the archivist announcing that the amendment is now a valid part of the Constitution.
The certification is then published in the Federal Register and U.S. Statutes at Large and serves as official notice to Congress and the public that the amendment process has been successful.
It is unclear why Biden, a supporter of the ERA, did not publish the certification of the amendment earlier in his term.
The White House did not respond to a request for comment.
A group known as the Biden Publish the ERA Alliance held a digital town hall on Dec. 3 to lay out a strategy to pressure Biden to act before the incoming Trump administration takes office on Jan. 20, 2025.
A recently signed letter from 46 U.S. senators requested Biden to direct the archivist of the United States “to certify and publish the Equal Rights Amendment (ERA) as the 28th Amendment” to the Constitution.
The current national archivist is Colleen Shogan, a Biden appointee who was confirmed by the Senate in 2023.
The memorandum says in part: “Whether the ERA is part of the Constitution will be resolved not by an OLC opinion but by the courts and Congress … the 2020 OLC opinion is not an obstacle either to Congress’s ability to act with respect to ratification of the ERA or to judicial consideration of the pertinent questions.”
The OLC is an office within the Justice Department and part of the Executive Branch.
Sen. Kirsten Gillibrand (D-N.Y.), who circulated the letter, was the headliner of the town hall.
Gillibrand told the meeting that stopping the ERA posed an “unbelievable threat to women’s reproductive freedom.”
“Too many lives have been lost since the overturn of Roe v. Wade,” she said.
Gillibrand stated that the task at hand was to garner and build a show of support from the American people for the ERA.
“I’m optimistic our advocacy can make a difference. We have legal analysis on our side,” she said.
When asked why Biden had not acted for three-and-a-half years, Gillibrand blamed his lawyers for being “very conservative in their thinking.”
Gillibrand did not respond to a request for comment.
Trump’s OLC opined that an original seven-year ratification time limit written into the congressional proposal clause of the ERA had run out, thereby rendering the whole process dead for lack of timely state ratifications.
Not only did the amendment fail to receive enough ratifications during the initial seven years, but it fell short again, even after Congress, by a simple majority vote, and the time limit was extended from 1979 to 1982, an addition of three years.
Initially introduced in Congress in 1923, it was not until 1972 that a reintroduction of the proposed amendment could obtain the constitutionally mandated two-thirds vote of both houses that would move it on to the states for ratification.
Illinois followed suit in 2018, and in 2020, Virginia became the 38th state to ratify the ERA.
The action of these three states set the stage for the current effort by progressive groups to push Biden into defying the will of Congress and the OLC opinion by publishing and thereby declaring the ERA adopted.
“Biden has authority, opportunity, and power to publish ERA,” said attorney Nicole Bates, an organizer and host of the town hall.
Proponents of the publishing of the ERA argue that the strategy puts them in a better legal position in the expected court challenges to follow.
“It is much harder to take away rights once they are established. The battle will expose the opponents for who they are,” said Gillibrand.
Attorney Kristen Ullman, president of the Eagle Forum, a conservative, pro-family, advocacy organization opposed to the ERA, told The Epoch Times that 35 states ratified the ERA by 1977, but five of those states rescinded their ratifications.
Ullman said that the 2020 OLC opinion makes it clear that since the ERA failed to obtain 38 ratifications by the original 1979 deadline, the amendment is dead.
Despite the rescissions and the elapsed deadlines, Ullman said that “the feminists/abortionist/trans lobby” is trying to make Biden direct the archivist to certify that the requisite number of states have ratified the ERA.
That certification would trigger immediate court challenges from conservative groups.
The Equal Rights Amendment of 1972 comprises the following 40 words.
“Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
Those words are important to trans-activist Jack Knoxville, a participant in the town hall meeting.
“The trans community exists and wants to thrive and live in an equitable future and not have to fear for our existence,” said Knoxville. “I have to be afraid of what is coming.”
Attorney Kate Kelly, another town hall participant, said that not just women will be protected by ERA.
“The word ‘woman’ is not in the ERA. Women are protected, as well as queer people, marginalized folk, and women of color. The more marginalized the more you have to gain,” Kelly said.
Ullman told The Epoch Times: “The ERA is bad for women. It erases women at the expense of ‘equality.’
“Men identifying as women would be legally allowed to usurp women’s rights. They would gain access to women’s sports teams, nursing homes, prisons, and domestic violence shelters.
“Young women would lose the ability to choose single-sex education.
“If they are able to convince President Biden to actually take this action, we will see him in court and beat back this terrible idea once again.”