Outgoing President Joe Biden has thrown his weight behind an effort to enshrine the Equal Rights Amendment part of the United States Constitution.

Friday’s announcement was the latest in a series of 11th-hour statements and actions from the executive branch, as Biden seeks to cement his legacy despite a single term in office.

In a news release, Biden offered unequivocal support for the proposed amendment, which stipulates that equal rights under the law shall not be denied “on account of sex”.

He also argued it should be considered the law of the land, despite ongoing legal ambiguities.

“I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex,” Biden said.

“We, as a nation, must affirm and protect women’s full equality once and for all.”

Legal ambiguity

While the US Constitution does guarantee “equal protection of the laws” to all citizens, nowhere in the document is sex or gender explicitly indicated.

That has led some scholars and activists to argue that the Equal Rights Amendment is necessary to prevent judges from dismissing sex- or gender-based discrimination as falling outside the law’s mandate.

The late Supreme Court Justice Antonin Scalia, for instance, was among those who believed the Constitution’s protections did not extend to sex or gender.

“You do not need the Constitution to reflect the wishes of the current society,” Scalia told the publication California Lawyer in 2011. “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”

More recently, in 2022, Justice Clarence Thomas published an opinion that the Supreme Court “should reconsider” cases that established the right to same-sex marriage and contraception, on the basis that they may not fall under constitutional protections.

He called those precedents “demonstrably erroneous decisions”.

Rocky road to ratification

It is unclear whether Biden’s statement on Friday will allow the Equal Rights Amendments to overcome the final hurdles to be considered established law.

The amendment has been long in the making. Starting in 1923, lawmakers repeatedly tried to pass versions of the amendment multiple times, only to find the US Congress largely opposed.

But as the 20th century progressed, the composition of Congress started to shift, with more female and minority politicians joining the largely white, male legislature.

In 1971, Democrat Martha Griffiths once again reintroduced the Equal Rights Amendment in the House of Representatives — and it passed with the necessary two-thirds support. The next year, the Senate took up the bill and likewise gave its overwhelming approval.

But amending the US Constitution is a difficult process, one that requires buy-in from both the federal and state levels. Three-fourths of state legislatures also needed to ratify the amendment.

That is where the Equal Rights Amendment ran aground. Congress had allowed seven years to ratify the amendment — but only 35 states had done so by that point. A total of 38 states, out of 50, were needed.

Even when Congress extended the deadline to 1982, no other state successfully ratified the amendment. The Equal Rights Amendment was considered largely defeated.

A renewed push

But recent concerns over abortion access and threats to LGBTQ rights have reignited interest in the amendment. Legal groups, including the American Bar Association, have questioned whether the imposition of a deadline was constitutional in the first place.

And states started to once again look at ratifying the law. It got approval from Nevada in 2017. Then Illinois in 2018. And in 2020, Virginia became the crucial 38th state to ratify it.

Biden said he believes that action made the Equal Rights Amendment the law of the land.

“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 wrote in Friday’s statement.

But the legal fate of the Equal Rights Amendment remains unclear. Some states have taken action to revoke their initial ratification, including Kentucky and Nebraska.

The US national archivist has also declined to certify the amendment, citing the long-expired deadline.

Ultimately, Biden, as president, has no direct authority to force the adoption of the amendment. Still, his high-profile gesture of support has drawn applause from the longtime advocates for the constitutional change.

Senator Kirsten Gillibrand of New York, for instance, praised Biden’s decision on social media.

“This is an incredible moment for reproductive freedom, and a historic day for equality – especially with Americans facing the further degradation of reproductive freedom as the incoming administration takes power,” she wrote, referencing the policies of President-elect Donald Trump.

During his first term, Trump appointed three conservative justices to the Supreme Court, paving the way for the 2022 decision that overturned the federal right to an abortion. Trump takes office for a second term on Monday.

Gillibrand indicated that subsequent laws that limit access to abortion and other reproductive healthcare procedures could run afoul of the amendment, should it be considered law.

“Now, women living in states with restrictions on their reproductive freedoms can — and should — file suits to overturn these unconstitutional laws that discriminate on the basis of sex.”