In Farewell Move, Biden Pushes for ERA Recognition Amid Legal Uncertainty

On his last days in office, Joe Biden proclaimed the Equal Rights Amendment (ERA) as the 28th Amendment to the U.S. Constitution. This assertive statement seeks to establish gender equality in legal terms, marking his presidency with a significant, albeit controversial, action. Biden's announcement reinforces his commitment to equality, yet legal experts and opponents debate the legitimacy of the ERA, which still encounters considerable procedural and legal obstacles.

“As a nation, we must affirm and protect women’s full equality once and for all,” Biden stated during his farewell address. “I stand by my beliefs and the decision of three-fourths of the states: The 28th Amendment is now the law of the land, ensuring that all Americans receive equal rights and protections, irrespective of their sex.”

Even with Biden’s declaration, the formal recognition of the amendment is still entangled in legal ambiguity. Critics highlight Congress’s initial 1982 ratification deadline and the later rescissions of six state approvals as obstacles to its adoption. The U.S. archivist, referencing established legal and procedural guidance, chose not to certify the ERA as a component of the Constitution. Biden’s announcement, though symbolically important, does not carry immediate legal weight and transfers the issue of validity to the judicial system.

Advocates of the ERA, such as Senator Kirsten Gillibrand (D-NY), commended Biden’s choice. “This marks a remarkable moment for reproductive freedom and a significant day for equality,” Gillibrand stated. Proponents contend that the ERA would enhance safeguards against sex-based discrimination, address wage inequalities, and possibly reinstate federal abortion rights. Opponents argue that the amendment is unnecessary due to existing laws and may result in unforeseen issues in areas such as public facilities.

Legal scholars continue to hold differing opinions. Some contend that the ratification deadlines imposed by Congress are unconstitutional, while others warn against establishing a precedent that might undermine the legitimacy of amendments. “Biden can express any opinion he wishes, but it lacks legal weight.” "You cannot reverse the passage of time," remarked Akhil Amar, a professor at Yale Law School.

As President-elect Donald Trump prepares to assume office, Biden’s action highlights a significant difference in leadership priorities. During Trump's administration, there was a clear opposition to the ERA, making any efforts for its recognition under his presidency appear improbable.

Biden’s farewell statement emphasizes a presidency that advocated for advancements in gender equality. While the legal future of the ERA is still unclear, Biden’s statement guarantees that the struggle for its acknowledgment will continue to be a significant concern for generations to come.

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