Biden says Equal Rights Amendment is law, but is it?

President Biden said Friday that the Equal Rights Amendment had been ratified and should be considered the 28th Amendment to the Constitution, but the National Archives quickly rejected that notion.

The National Archives, the official keeper of the Constitution, said courts and the Justice Department consider the ERA dead in its current form.

The issue is whether 38 states have officially ratified the 52-year-old amendment.

Three days before Donald Trump’s presidential inauguration, Mr. Biden declared that they have. Mr. Trump’s first administration sided with those who said the amendment had not been properly ratified.

“It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: The 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex,” he said.

Three of the 38 states that ratified the amendment missed Congress’ deadline, which courts have validated.

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The National Archives said Mr. Biden’s declaration doesn’t change “the underlying legal and procedural issues.” It pointed to a statement last month saying the Archivist won’t defy court rulings.

“Court decisions at both the district and circuit levels have affirmed that the ratification deadlines established by Congress for the ERA are valid. Therefore, the Archivist of the United States cannot legally publish the Equal Rights Amendment,” the agency’s leaders said at the time.

Mr. Biden said he was on solid ground.

“I consulted dozens of constitutional scholars to make sure it was all within the power to do this,” he said.

The ERA declaration was part of the lame-duck president’s last-minute executive actions.

Mr. Biden also issued clemency in 2,500 cases, focusing primarily on those sentenced under laws that have since been softened.

He also added 15 drugs to the list that the federal government uses to negotiate prices under Medicare.

Congress approved the ERA in 1972 and sent it to the states for ratification with a seven-year deadline. Constitutional amendments require approval by three-fourths of the states.

By 1979, 35 states had ratified the ERA, short of the 38 needed.

Congress approved a three-year extension of the deadline, but no states acted on the ERA.

Decades later, ERA supporters said they decided the deadlines were invalid.

They won ratifications from Nevada in 2017, Illinois in 2018 and Virginia in 2020.

Supporters then sued to get the courts to order the Archives to recognize the amendment, but courts consistently upheld the deadline.

A few states that voted to ratify the amendment have since voted to rescind their approvals.

ERA supporters argue that ratifications after the deadline should be counted and revocations should be ignored.

The ERA’s key text reads: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”

Supporters say the amendment would strip away the remaining vestiges of sex discrimination. Opponents say the law and court decisions already require equality and see the ERA as a backdoor attempt to enshrine abortion rights in all the states.

Another question is whether the amendment would cover LGBTQ rights. When Congress approved the amendment in the 1970s, transgender issues were nowhere to be found. They became prominent when Virginia held its ratifying debates in 2020.

If the amendment became part of the Constitution, it would be tricky for courts to discern the extent of its protections.

Before her death in 2020, Supreme Court Justice Ruth Bader Ginsburg said the ERA, at least the version from 1972, was dead. She suggested that ERA backers start again.

That prospect is daunting, given the politics of Capitol Hill and reticence in Republican-led states.

Legal complications aside, ERA backers hailed Mr. Biden’s announcement.

“This is a moment of historic importance,” said Sen. Richard J. Durbin, Illinois Democrat.

Conservatives said Mr. Biden was “simply wrong.”

“Biden’s statement has no legal force,” said Jenny Beth Martin of Tea Party Patriots Action. “It is nothing more than a last-ditch attempt to woo certain elements of the American body politic. Like so much of what he has attempted, it, too, will fail.”