Happy International Women’s Day, everyone! For today’s Friday Know-It-All, Brand Engagement Director Brianna would like to discuss the Equal Rights Amendment: its history, its maybe-in-effect-already status, and its future as it relates to gender and sex in the U.S.

The ERA is a proposed amendment to the U.S. Constitution; its full text, modeled after the 19th amendment, reads:

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.

This amendment was first proposed in 1923 by Alice Paul, a suffrage leader and head of the National Women’s Party, and it was introduced in Congress later that year. The ERA divided the women’s rights movement for decades, over its priority, and Paul reworded its language to the above in 1943. Twenty-nine years later, the ERA passed with the necessary two-thirds vote in both the House and Senate.

This brought the decision to the states, which is where things got stickier. Although no ratification time limit is mentioned in Article V of the U.S. Constitution, a seven-year deadline was placed in the proposing clause — though not in the text of the amendment itself.

Enter Phyllis Schlafly. Schlafly led an opposition campaign called “STOP ERA.” She argued that the ERA would take away what she thought of as privileges women currently received, such as the exemption from mandatory military service (which was not irrelevant, given the freshness of the Vietnam War), the “dependent wife” clause granting widows Social Security benefits, and the preference in custody battles given to mothers.

Schlafly lobbied Congress during a time when feminists were divided on political issues that are widely agreed upon today. By 1978, the ERA was three states shy of the necessary approvals; at this point, Congress passed a simple-majority bill to extend the deadline to June 30, 1982. No gains occurred in these four years, and 53 senators voted to re-introduce the amendment in 1983. In November, a vote to pass the ERA and send it back to the states failed by six votes in the House of Representatives.

What has happened since 1983? A few key things.

First, the ERA has been reintroduced during every session of Congress since, with language updates throughout the decades to align with current understanding about gender and sex. In the 117th Congress (2021-2022), the latest ERA bill was introduced in the House of Representatives by Representatives Carolyn Maloney (D-NY), and Tom Reed (R-NY).

Second, advocates for the ERA adopted a “three-state strategy,” which was born after the ratification of the 27th amendment in 1992. Why did this amendment’s ratification matter? It was first introduced by James Madison and passed in Congress in 1789. It did not receive a two-thirds majority until 1992, which ERA supporters highlighted as a reason why time limits on Constitutional amendments should not be honored. Therefore, all supporters needed to do was get the remaining three states necessary to achieve a two-thirds majority on board. They achieved this when Nevada, Illinois, and Virginia all ratified the ERA.

Between 1992 and 2020, bills have been introduced to override the time limit set by the original proposing clause. S.J.Res.4 in the Senate and H.J.Res.25 in the House are the companion bills in the current session of Congress. On April 27, 2023, the Senate held a roll call vote on a motion to proceed with a vote on S.J. Res. 4, which earned bipartisan majority support but fell short of the 60 votes required to overcome a filibuster and proceed to a vote on the bill itself.

Third, constitutional scholars and ERA advocates have presented a legal argument to support the claim that the ERA is now ratified as of January 27, 2020, which is when Virginia became the 38th state to ratify it. This would also mean, based on the text of the amendment, that the ERA went into effect on January 27, 2022.

Five states have attempted to rescind their votes for ratification: Idaho, Kentucky, Nebraska, South Dakota, and Tennessee. North Dakota also adopted a resolution in 2021 that declared their ERA ratification lapsed in 1979, but no state vote to withdraw approval of a constitutional amendment has ever been recognized — for any amendment.

In a 2020 written opinion responding to then U.S. Archivist David Ferriero, who requested clarification regarding his duty to publish the ERA after a 38th state ratified the amendment, the Department of Justice’s Office of Legal Counsel, at that time under Attorney General William Barr, argued that the ERA was dead because its time limit had expired. The current Department of Justice, under Attorney General Merrick Garland, has said this opinion is “inaccurate” and has called for Congressional action to resolve the ratification question.

There have also been several lawsuits, the most significant of which is Virginia v. Ferriero. The attorneys general of Virginia, Nevada, and Illinois argued that Ferriero had a duty as the then-archivist to publish and certify the ERA. In 2021, Judge Rudolph Contreras in the U.S. District Court for the District of Columbia said the deadline set by Congress was valid and the states had no standing to sue. Virginia withdrew from the suit, and the remaining states’ appeal was rejected on February 28, 2023, because the legal issue is not “clear and indisputable.” No additional appeals have been announced, and neither have decisions on other ERA-based lawsuits.

And finally, several states have taken action to adopt their own ERAs, to guarantee that regardless of what happens to the U.S. Constitution, they want their state Constitution to include this language. Minnesota is one state where this is in progress.

What is the federal ERA’s future? Whatever it is, it will require action from the legislative branch (supported by the executive branch): They need to pass a law that undoes the time limit set by Congress in the ’70s and ’80s, they need to restart the amendment ratification process, or they need to pass a law declaring the amendment officially dead.

So there you have it: 100 years of women’s history about an amendment first proposed by suffragists. And that’s all there is to know this week.