Why the Equal Rights Amendment Matters to Seniors

On January 17, 2025, outgoing President Joe Biden declared that “[t]he Equal Rights Amendment [ERA] is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.” This declaration came as a surprise to many, but he had been urged to do so by, among others, Senator Kirsten Gillibrand (D-NY) before leaving office. However, the former President did not direct the Archivist to publish it. Enforcement is, therefore, left to the states, the courts, the Congress, as well as those of us who want to see it enforced.

Justice would be best served, and seniors—men and women—would be better protected if the ERA were added as the 28th Amendment to the Constitution. The benefits would include equal access to health care, social security, insurance, housing, and the right of privacy. But first, a little of the history of and battle over the ERA, which has been going on for over 100 years!

History of the ERA and Battle for Ratification

By way of background, the following is the text of the Equal Rights Amendment (ERA):

“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.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.”

The amendment was written by suffragists Alice Paul and Crystal Eastman in 1921. Congressman Daniel R. Anthony, Susan B. Anthony’s nephew, proposed it in Congress in 1923, and it was passed by a 2/3 vote of Congress on March 22, 1972, and subsequently sent to the states for ratification. The purpose of the sponsors was to ensure that women would not be discriminated against notwithstanding the passage of the 19th Amendment in 1920 guaranteeing women the right to vote.

Section 2 above is especially important because, once ratified, Congress and the states can enact legislation to eliminate all remaining discrimination against women –and men —in the cases of access to health care, federal benefit programs, social security, etc. Additionally, the Supreme Court cannot issue opinions discriminating against women and gay men.

The Ratification Process for the ERA Has Been Very Confusing

To be added to the U.S. Constitution, Article V of the Constitution dictates that Congress must approve the proposed amendment by a 2/3 vote in each of the House and Senate and then achieve ratification by three-fourths of the states or, in the case of the ERA, 38 states by June 30, 1982. The original ratification date of 1972 was extended by 10 years to 1982.

How many states ratified the ERA is also confusing. Have 38 states ratified or only 35? The most recent was in Virginia on January 27, 2020. Actually, a sufficient number of states did ratify the ERA but at least five states –Nebraska, Tennessee, Idaho, Kentucky, and South Dakota —voted to rescind their ratification between 1973 and 1979. There is an ongoing debate about whether rescission counts. In August 2024, the ABA passed a resolution stating that a deadline is not consistent with Article V of the Constitution and that states lacked the ability to rescind amendment ratifications.

Why has the ERA been so controversial that a number of states rescinded their approval? This happened largely because anti-ERA activists like Phyllis Schlafly argued that the ERA would “threaten traditional gender roles, undermine women’s protections and disrupt family structures” –all of which sounds rather quaint in 2025.

Can the President Declare the ERA Ratified?

The action of President Biden to declare the ERA ratified may have mooted this question but it could also prompt more litigation. Senator Gillibrand herself has said she welcomes the litigation. The Archivist of the United States, a fairly arcane position in the government, had previously decided, based on a 2020 opinion from the Office of Legal Counsel of the Justice Department that the statutory deadline for ratification –of 1982— cannot be extended. However, as noted above, the ABA concluded that the deadline is not critical to ratification.

For a complete review of the ERA ratification process, please see the following CRS report.

Women’s Representation in the Constitution

Why aren’t women included in the Constitution?

Of course, we know only white male landholders were considered full citizens when the Constitution was adopted in 1778 and went into effect in 1779. It wasn’t until 1863 that President Lincoln’s Emancipation Proclamation declared non-whites equal citizens under the law. This equality was not ratified until the addition of the 14th and 15th Amendments to the Constitution in 1868 and 1870, respectively.

The 19th Amendment to the Constitution gave women the right to vote in 1920. However, the equal status of women was not adopted. Except for the 19th Amendment and its important right to vote, women are not mentioned in the Constitution.

As we are now well into the 21st Century, why should women be left out of the Constitution? After all, women represent 50 percent of the population and have at least one-third of the financial holdings in the U.S. In effect, women are part of the new land-holding gentry, as only white men were in 1779.

How Would Seniors Benefit from the Adoption of the ERA?

The real purpose of this article is to examine what benefits could accrue to seniors –both women and men —from incorporating the ERA as the 28th Amendment to the U.S. Constitution and what seniors can do to help.

These are my personal lists.

1. More and more women are working and working into middle and later ages and need to be protected against age discrimination in the workplace. The ERA would help with this.
2. Women live longer than men and need to be protected in securing and maintaining equal access to health and life insurance benefits for their lifetimes. The ERA would help with this.
3. Men need to make sure the women they care about and are contributors to family incomes, if not the sole providers, are treated equally in the workplace, in the case of health insurance, promotions, and social security. The ERA would help with this.
4. The next generation of women —our daughters and granddaughters —need to see that we have fought for equal rights for women and men and the ERA would be proof of this. Let’s leave a legacy for our children and grandchildren by making sure the ERA is added to the Constitution.
5. If women were included in the Constitution, we might not have ended up with the Dobbs v. Jackson Women’s Health Org. decision reversing Roe v. Wade because the rights of women to bodily autonomy and equal treatment under the law would be implicit in the ERA. The ERA would have made a difference.
6. Passage of the ERA would have addressed the concerns that Justice Ruth Bader Ginsburg had about the lack of clarity in the Constitution to protect a woman’s right to an abortion. In May 2013, Justice Ginsburg addressed Roe v. Wade at 40 in a lecture at the University of Chicago Law School. Her “criticism of Roe is that it seemed to have stopped the momentum on the side of change.” She “ would’ve preferred a more gradual approach that included state legislatures and the courts.” It was this concern that Justice Alito relied on to justify his majority opinion in Dobbs. The ERA would have made a difference.
7. Finally, the ERA is needed to ensure that all seniors, men and women, gay and straight, are not discriminated against on the basis of sex. The ERA would help make sure that the Supreme Court could not readily overturn Obergefell v. Hodges as was threatened in a concurring opinion by Justice Thomas in Dobbs. For this reason, the LGBTQ Task Force endorsed a Congressional resolution in the last Congress to ratify the ERA. The ERA would help protect existing and future rights for all citizens.

For all these reasons, the ERA should become the 28th Amendment to the Constitution, and as members of the SLD and ABA, we should work to achieve this end. This can be done by the following steps:

• Urge Congress to pass legislation implementing the ERA.
• Urge states to pass mini-ERAs in state constitutions.
• Urge state bar associations to issue resolutions supporting the ratification of the ERA in state courts and Congress.
• Support groups who are willing to fight to defend the ERA in court, e.g., AARP, the National Organization for Women, the League of Women Voters, and the LGBTQ Caucus.
• Take steps to act as if the ERA is ratified, as President Biden declared when legal challenges are made to equal access to health care, social security, and insurance.

Litigation and the Supreme Court may finally resolve the question of ratification. But, in the meantime, Congress and the states can rely on the ERA to end existing discrimination against women. The ABA has already endorsed this outcome, as have a number of state bar associations, such as the State Bar Association of New York.