Equal Rights Amendment: Text, Ratification, and Current Status

This article is provided for educational and informational purposes only. It does not constitute legal, financial, or tax advice, and no attorney-client relationship is formed by reading it. Laws, regulations, official guidance, and related information vary by jurisdiction, change frequently, and may have changed or become outdated since publication. Always verify current information with authoritative sources and consult a qualified professional about your specific circumstances. The author and publisher assume no liability for actions taken based on this information.

The Equal Rights Amendment, commonly called the ERA, is a proposed addition to the U.S. Constitution concerning equality under law regardless of sex. Congress approved its familiar language in 1972, but the proposal’s legal status remains disputed because the required number of states was not reached before a congressional deadline.

This distinction is essential: the ERA is not simply an ordinary bill awaiting a presidential signature. A constitutional amendment follows Article V, which requires proposal by a supermajority and ratification by the states. The National Archives has not certified or published the ERA as part of the Constitution.

What the Equal Rights Amendment says

The proposed amendment contains three short sections. Section 1 says that equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex. Section 2 gives Congress power to enforce the amendment through appropriate legislation. Section 3 delays the amendment’s effective date until two years after ratification.

That language would address both federal and state government action. It does not say that every distinction involving sex would automatically produce the same legal result, and the 1972 text does not provide a complete list of covered laws or remedies. Courts would interpret the amendment in actual cases, while Congress could legislate under the enforcement clause within constitutional limits.

How a proposed amendment becomes part of the Constitution

Article V provides two routes for proposing amendments: approval by two-thirds of both houses of Congress or a convention called after applications from two-thirds of state legislatures. It also provides two possible ratification methods: approval by three-fourths of state legislatures or conventions in three-fourths of the states. Congress selects the ratification method for a particular proposal.

The ERA used the congressional-proposal and state-legislature routes. With 50 states, the three-fourths threshold is 38. Unlike ordinary federal legislation, a proposed constitutional amendment does not go to the president for approval or veto.

Federal law assigns the Archivist a publication and certification role after official notice that an amendment has been adopted under the Constitution. That administrative step does not give the Archivist a general power to resolve every constitutional controversy about ratification.

The 1972 proposal included a ratification deadline

The joint resolution passed by Congress stated that the ERA would become valid when ratified by three-fourths of the state legislatures within seven years. The deadline appeared in the resolution’s proposing clause rather than in the three sections of amendment text sent to the states.

Congress later extended the deadline to June 30, 1982. By that date, 35 states had ratified, three short of the Article V threshold. Five of those states also adopted measures purporting to rescind their earlier ratifications, creating a separate question about whether a state may withdraw an Article V ratification.

Why the ratification count reached 38 only later

State ratification activity resumed decades after 1982. Nevada ratified in 2017, Illinois in 2018, and Virginia in 2020. Counting those actions together with the earlier ratifications produces 38, without subtracting the five attempted rescissions.

The arithmetic therefore is not the principal disagreement. The central legal issue is whether ratifications after the deadline can count. A related issue is whether Congress may remove or disregard a deadline after submitting an amendment to the states. The legal effect of attempted rescissions could matter if the late ratifications are otherwise valid.

The federal government’s published positions are not identical

A 2020 Justice Department Office of Legal Counsel opinion concluded that Congress had authority to set the deadline, that the proposal failed when the deadline expired without 38 ratifications, and that the Archivist could not certify it. The opinion also concluded that Congress could not revive the expired proposal by removing the deadline.

In 2022, the Office of Legal Counsel clarified that the 2020 opinion did not prevent Congress from acting or courts from considering the ERA’s status. The later opinion described some of the relevant constitutional questions as difficult and acknowledged competing interpretations, but it did not direct the Archivist to publish the amendment.

In December 2024, the Archivist and Deputy Archivist stated that the ERA could not be certified as part of the Constitution under established legal, judicial, and procedural decisions. That statement remains the National Archives’ published administrative position reflected in the authorities used for this article.

What the courts have and have not decided

Litigation brought by late-ratifying states did not produce an order requiring publication. In Illinois v. Ferriero, the federal appeals court in Washington concluded that the states had not shown a clear and indisputable right to compel the Archivist to certify and publish the ERA. The court treated the deadline obstacle as sufficient to defeat that request.

That outcome is important, but it did not convert every disputed ERA issue into a universally settled rule. Debates remain over the legal significance of a deadline located in a proposing clause, the possible role of Congress after submission, and attempted rescissions. Those questions explain why descriptions such as “ratified by 38 states” and “part of the Constitution” are not interchangeable.

How the ERA differs from existing sex-equality law

The absence of a certified ERA does not mean the Constitution contains no existing equality protection. The Fourteenth Amendment‘s Equal Protection Clause provides that no state may deny any person within its jurisdiction the equal protection of the laws. That existing clause and the proposed ERA have different text and constitutional histories.

The proposed ERA would differ in source and scope. Its Section 1 expressly names sex and binds both the United States and every state. Its Section 2 expressly gives Congress enforcement authority. Exactly how those provisions would interact with existing doctrine would be developed through legislation and judicial interpretation if the ERA became operative.

What “ratified” can mean in ERA discussions

ERA discussions often use the same word for different propositions. A state legislature may have adopted a ratification resolution. The total number of such state actions may be 38. Yet the separate constitutional question is whether all those actions count despite the deadline and attempted rescissions.

For that reason, a careful description identifies both the count and the legal-status dispute. It is accurate to say that Nevada, Illinois, and Virginia acted after the deadline and that the National Archives records those actions. It is also necessary to say that the Archivist has not certified the ERA as a constitutional amendment.

Frequently asked questions

Is the Equal Rights Amendment currently in the Constitution?

The National Archives has not certified or published the ERA as part of the Constitution. Advocates and some public officials contend that it has satisfied Article V, but that position has not produced an operative federal certification recognized by the National Archives.

What would the ERA prohibit?

Its text would prohibit the United States and any state from denying or abridging equality of rights under law on account of sex. The text also would empower Congress to enforce the amendment and would delay effectiveness for two years after ratification.

Why was 38 states the target?

Article V requires ratification by three-fourths of the states. Three-fourths of 50 is 37.5, so the threshold is 38 states.

Did 38 states vote to ratify?

Yes, if all state ratification actions are counted without regard to timing or attempted rescissions. Thirty-five acted by June 30, 1982; Nevada, Illinois, and Virginia acted later.

Can a state rescind its ratification?

The Constitution does not expressly describe rescission, and the ERA controversy has not produced a definitive modern Supreme Court rule resolving the effect of the five attempted rescissions in this setting.

Can Congress remove the deadline?

Members of Congress have introduced and debated measures intended to remove or disregard it. The constitutional effectiveness of doing so after the deadline is contested, and no such measure has resulted in National Archives publication of the ERA.

Sources

• Congress.gov Constitution Annotated text and explanation of Article V
• 1972 joint resolution proposing the Equal Rights Amendment, 86 Stat. 1523
• National Archives Equal Rights Amendment history and records
• National Archives list of state ERA ratification actions
• National Archives statement on the ERA ratification process
• Justice Department 2020 opinion on ratification of the ERA
• Justice Department 2022 opinion on possible congressional action concerning the ERA
• D.C. Circuit opinion in Illinois v. Ferriero
• Congress.gov Constitution Annotated text of the Fourteenth Amendment