100 years in the making, the ERA, which prohibits discrimination based on sex, becomes the 28th Amendment of our Constitution on January 27, 2022, two years from the day that the 38th state ratified the ERA. Mere days from now.
However, the U.S. Archivist, responsible for safeguarding our Nation’s records, has refused, with the full backing of the Executive Branch, to acknowledge and publish the Amendment to our Constitution as required by federal law.
This is a simple ministerial act. There is no room for the opinions of or interpretations by the Archivist or Executive Branch in the Constitutional amendment process.
The exclusion of the 28th Amendment from our Constitution undermines its validity and forces 167 million women and girls to have to fight, yet again, for what has already been earned.
So why is this happening? Cue the politicians and fear of changing the status quo if women have Constitutional equality. Perhaps it is a threat to white male privilege?
Many expected the Trump Administration would do anything and everything it took to block and undermine the ERA. Afterall, the Trump Administration swiftly reversed many key advances made by women, including disbanding the White House Council on Women and Girls and reversing the Fair Pay and Safe Workplaces policies, which imposed paycheck transparency and banned forced arbitration for sexual assault/harassment or discrimination claims, which are essential to attaining equality. The rights of 167 million American women and girls eliminated with strokes of a pen.
Sure enough, on January 6, 2020, with Virginia’s ratification imminent, the Trump Administration’s Office of Legal Counsel (OLC) issued a memorandum, authored by a Trump appointee, prohibiting the Archivist from publishing the ERA.
Trump’s memorandum has no legal significance. The sole role of the Executive Branch in this process is paperwork - publishing the revised Constitution. The Archivist admitted as much when he published the controversial 27th Amendment, which took 203 years to ratify and with many questioning its validity.
However, no one anticipated the recent, blatant undermining of democracy by the Biden/Harris Administration. After campaigning hard on its dedication to women and support for the ERA, it has not revoked the Trump OLC memorandum, despite acknowledging that the ERA has been ratified. Yet other Trump OLC memoranda have been overturned!
As a direct comparison, the Biden/Harris Administration recently was under “intense pressure,” including from the Senate Judiciary Committee, to revoke an OLC memorandum requiring prisoners placed on home confinement during the pandemic to return to prison. Despite admitting the Trump OLC memorandum was legally-sound, the Biden/Harris Administration recently reversed it and declared that nearly 8,000 prisoners may remain in home confinement.
The Biden/Harris Administration reversed course on a legally-sound memorandum it disagreed with for 8,000 prisoners, but it has neither directed the Archivist to publish the ERA nor rescinded the Trump OLC memorandum that has no legal significance yet is keeping Constitutional equality from 167 million women and girls.
Even worse, the Biden/Harris Administration is actively fighting against the ERA in a case brought against the Archivist to compel publication!
How is this possible?
The Biden Agenda for Women, a campaign hallmark, provides “As President, he will work with advocates across the country to enshrine gender equality in our Constitution. Now that Virginia has become the 38th state to ratify the ERA, Biden will proudly advocate for Congress to recognize that 3/4th of states have ratified the amendment and take action so our Constitution makes clear that any government-related discrimination against women is unconstitutional.”
If so, then why has this not happened? There are mere days to go! Women and girls deserve better than rhetoric and empty promises.
We are in a Constitutional crisis. The Constitution has been amended, yet the Executive Branch is abusing its power by refusing to publish, thereby undermining the ERA. More evidence that, without the 28th Amendment, the rights of women and girls are dependent on the whims of politicians and the judges they appoint.
Women and girls are suffering. The pandemic has taken a disparate toll on women, particularly women of color.
Underpaid and undervalued. Lacking access to affordable childcare, healthcare and paid leave. Inadequate protections against sexual assault, harassment, domestic violence and discrimination. The list goes on.
It is not just women and girls. As noted by countless studies and a recent brief filed by 86 major corporations, including Google, Apple, Microsoft, Morgan Stanley, Citigroup, Tory Burch Pepsi and even the NFL, to compel publication of the ERA, families, communities, businesses, and our economy suffer when women suffer.
The Constitutional equality established by the 28th Amendment is the first crucial step towards remedying these issues.
Now is not the time for our leaders to abuse their power and play political football with the rights of 167 million women and girls. Our country is at a crossroads, and We the People demand our President, Vice President and Senators, who have taken an oath to support and defend the Constitution, do their job. They work for us.
Time to put away the pens and get out of the way. We the People have spoken.