Outgoing president’s late actions could doom the ERA forever
January 20, 2025. Last Friday, Joe Biden declared the Equal Rights Amendment our Twenty-Eighth Amendment, even though presidents have no authority to declare the validity of amendments.
Under Article V of the Constitution, an amendment becomes law when the last of three-fourths of the states ratifies it. For the ERA, that date was January 27, 2020 — yet when Biden took office in 2021, he said the ERA was not valid, and he fought against it in two federal lawsuits. When he inexplicably changed his mind last week, not one member of the media asked about the lawsuits.
Senator Kirsten Gillebrand gave a press conference to explain why she thinks Biden can declare the ERA valid. She said the states validate new amendments and that Biden was just letting them know that they had done their job. Umm, Okay. She also invoked John Adams and said that he had declared the Eleventh Amendment valid, so Biden could do the same. In fact, Adams spoke to Congress about the Eleventh Amendment being valid in 1798, some three years after it was actually validated by the states.
Curious people wondered aloud on Friday why Biden made a statement on his last day, and why seemingly smart people like Harvard’s Larry Tribe said Biden had authority to validate the ERA when 99% of scholars say he doesn’t. Suspicious people could see what was really going on.
Biden’s statement was intended to provoke lawsuits about the ERA, one of which will swiftly find its way to the Supreme Court. This will ensure that women never achieve equality in America regardless of the ERA because of a little-known Supreme Court case called Skrmetti.
Skrmetti involves a Tennessee law that bans medical procedures, such as puberty blockers, for kids. Biden’s Justice Department sued Tennessee in 2023, arguing that the ban discriminates against transgender people. The lower court upheld the law after reviewing it under a “rational basis” test – the lowest level of judicial review for discrimination cases. The case was then appealed to the Supreme Court where Biden’s DOJ argued that “rational basis” was not fair and that the court should have applied a stricter “intermediate scrutiny” standard.
Here’s where it gets bad for women. Biden’s DOJ said trans people deserve intermediate scrutiny because transgender is “derived” from sex and sex gets intermediate scrutiny. Other categories, such as race and ethnicity, get a much better standard known as “strict scrutiny.” Under strict scrutiny, virtually all forms of discrimination are illegal. Under intermediate scrutiny, a lot of discrimination is allowed, which is exactly why women have been fighting so hard for the ERA. The ERA requires strict scrutiny. But there’s a catch. Women only get strict scrutiny IF sex is considered “immutable,” meaning it cannot be changed.
Here’s where the transgender case comes in. When the Supreme Court heard arguments in Skrmetti last fall, Justice Alito emphasized that transgender falls under the legal category of sex and is mutable because a trans person can declare themselves female today, male tomorrow, and female again after that.
Alito made clear that the Supreme Court will soon rule that because transgender falls under the meaning of sex, sex is mutable. Once this happens, women will never achieve full equality, regardless of the ERA, because people with mutable characteristics get only intermediate scrutiny.
Right after Biden issued his statement, Gillebrand called on lawyers across the country to start filing lawsuits asking courts to enforce the ERA as valid. Mind you, she did not ask lawyers to file lawsuits after the ERA was ratified in 2020. She waited five years and is asking now even though the DC Circuit Court of Appeals ruled in 2023 that the ERA is not valid because its ratification deadline expired decades ago. She wants lawyers to disregard a ruling of the second highest court in the land because Biden made a statement.
Gillebrand didn’t explain why the Biden Administration didn’t at least ask the Supreme Court for strict scrutiny in Skrmetti. What kind of lawyer asks the Supreme Court for second class rights — for anyone? Answer: a lawyer with an agenda that has more to do with destroying the ERA than protecting transgender people.
Funny thing, in addition to the two ERA lawsuits Biden fought against during his presidency, several additional lawsuits were filed after 2020, insisting that courts enforce the ERA as valid, but Gillebrand did nothing to help. They were filed in Michigan, New York, and Rhode Island, states where Democrat Attorneys General had declared, as Biden did last Friday, that the ERA is valid. Women expected those AGs to settle the lawsuits by agreeing that the ERA is valid, but they fought against the ERA instead. Yet Gillebrand thinks more lawsuits should be filed and it just so happens that Skrmetti is now available to mess things up.
The irony is unbearable. Politicians are screaming from the rooftops that the ERA is valid while simultaneously igniting a litigation strategy to destroy women’s equality. They think women are too stupid to see what they’re doing but they’re wrong. Women will rise up in anger, and we will never forget that it was Biden who finally killed the ERA.
Wendy Murphy is an attorney and longtime victims’ advocate.
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