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Biden supports Equal Rights Amendment: male-female parity or woke Trojan horse?

The president issued a statement assuring that the century-old proposal is already part of the Constitution. Critics argue his statements, however, while insufficient to modify the Magna Carta, could hide ulterior motives.

Manifestación contra la ERA en 1977

Demonstration against the ERA in 1977ZUMAPRESS.com/Cordon Press.

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"The 28th Amendment is the law of the land," Joe Biden assured three days before leaving the presidency. No need to count again: the Constitution has, effectively, legally, 27 amendments. The president's words refer to a controversial proposed amendment known as the Equal Rights Amendment (ERA).

First introduced a century ago, it has garnered numerous detractors and supporters, undergoing several votes at the national and state levels. Biden's attempt to reinvigorate it comes, critics say, as a shot across the bow to push items on his progressive agenda once ousted from the Oval Office.

What is the ERA?

First proposed in 1923 by suffragist Alice Paul, the Equal Rights Amendment sought to explicitly equalize men and women before the law. This is how its first text read, according to congressional records:

"Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation."

Although twenty years later it was rewritten by Paul herself, the substance was intended to be the same. The new wording read:

  • "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."

Why is it not part of the Constitution (at least not yet)?

In 1972, after being reintroduced it passed both the Senate and the House of Representatives. In both it achieved the necessary two-thirds majority.

The ERA stumbled at the next stage: it had to obtain the ratification of three out of four states. By 1982, the deadline set by Congress, only 35 states had endorsed it. It needed 38.

La representante Carolyn Malone defiende la ERA en 2012.

Rep. Carolyn Malone defends the ERA in 2012.UPI /Landov /Cordon Press.

What do proponents of the amendment say?

Proponents of the ERA disdain the expired deadline on a variety of grounds, including that it is amendable by lawmakers' decision (as they once did, postponing it) or that it offends Article 5 of the Constitution.

The deadline discarded, they claim that the proposed amendment reached the required 38 ratifications with an affirmative vote of both Virginia chambers in 2020.

These include the American Bar Association (ABA) and President Biden himself, who in his latest statement maintained that "the Equal Rights Amendment has become part of our Constitution."

Experts in the field point out that Biden's statement is merely symbolic. To become part of the Constitution, it would have to be published or certified by the national archivist, Colleen Shogan. Her role, however, is merely protocol.

As recently as last month, Shogan argued that the decision was in the hands of Congress and the Judiciary, which were to determine whether to lift the ratification deadline.

Trojan Horse?

Biden's endorsement in the final stretch of his term was criticized from both sides of the debate. On the one hand, it was judged too late to have any effect. From the other, it was seen as a last-ditch attempt to push his agenda beyond January 20.

In addition to the failure to meet the dates for passage, contemporary critics of the legislative text say it could serve as a Trojan horse for progressive policies.

Democratic Senator Kirsten Gillibrand aired this second intention in a public letter: "President Biden has the opportunity to enshrine reproductive rights for millions of women into law by directing the archivist of the United States to certify and publish the ER."

"The ERA’s protections extend beyond women, encompassing all individuals who face discrimination based on sex, including LGBTQ+ people," she argued in a recent article activist magazine Advocate. "It also reinforces the Equality Act, which seeks to expand federal protections against discrimination based on sexual orientation and gender identity."

VoteEquality, a pro-amendment group, argues on its website that the amendment could protect trans rights.

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