What's Up With the ERA?!

June 24, 2025. After a flurry of activity at the end of 2024 and in the waning days of the Biden Presidency, you are probably wondering what’s up with the Equal Rights Amendment ("ERA").

The short answer – A LOT.

It simply is being drowned out by the daily assaults on human rights and our democracy.

Below is a summary of what has occurred and critical next steps, including the filing of an amicus brief Shattering Glass is drafting in support of enforcing the ERA as the 28th Amendment to prohibit sex-based discrimination.

Background

As you know, Shattering Glass led the efforts to urge President Biden to publish the Equal Rights Amendment. Our coalition building and the associated pressure was impossible for the President to ignore. As a result, with three days left in his Presidency, President Biden issued a statement declaring the ERA has been duly ratified and is the law of the land.

Unfortunately, there was far more to the story.

Despite his proclamation, President Biden failed to instruct the US Archivist to certify and publish the ERA as the 28th Amendment. As set forth in our statement in response to President Biden’s proclamation, whether or not the ERA has been published, the ERA is valid and currently the 28th Amendment.  Without publication, however, we must now turn to the courts to establish the validity of and enforce the ERA.

That is what makes the rest of the story even worse.

Despite President Biden’s proclamation that the ERA is the law of the land, his Administration continued to fight against the validity of the ERA in court through the end of his Presidency.

Yes, you read that correctly.

The Biden Administration was actively fighting against the ERA at the time of President Biden’ s statement and throughout his entire Presidency. First, in two separate lawsuits initiated to compel publication of the ERA—Equal Means Equal v. Ferriero (June 2021) and Illinois v. Ferriero (Feb. 2023)— then in a lawsuit initiated in June 2023 to enforce the ERA—Valame v. Biden—which remains ongoing to this day.

Valame v. Biden

On June 20, 2023, Vikram Valame, an 18-year-old man, who just graduated from high school in California, filed a Complaint against President Biden and others, seeking a ruling that the mandatory draft registration requirement under the Military Selective Service Act only, which applies only to men (and not women), was invalid. More specifically, Valame argued that the draft requirement for men constitutes sex-based discrimination in violation of the duly ratified and enforceable Equal Rights Amendment. Valame allegedly filed his claim on his own behalf and without the assistance of legal counsel.

Yet again, President Biden and the other Defendants argued that the ERA is invalid as the final three ratifications (Nevada, Illinois, and Virginia) came after the deadline contained in the preamble to the resolution actually enacted by Congress and sent to the States for ratification.  

On January 20, 2024, the US District Court issued its ruling, dismissing Valame’s Complaint. In doing so, the Court relied on Elizabeth Cady Stanton Trust v. Nehrona, which stated:

The United States Constitution provides a pathway for adding new Amendments, and Congress has determined that the last step on that path is certification and publication by the National Archivist.

Because the ERA has not been published, the Court ruled the 28th Amendment does not now exist and dismissed Valame’s Complaint. Valame appealed the Court’s decision to the US Court of Appeals for the Ninth Circuit, and his appeal remains pending.

Within hours after President Biden issued his statement declaring the ERA is the law of the land, Valame sought to have the District Court’s ruling vacated. The current Defendants, including President Trump, opposed the motion, noting President Biden’s statement was meaningless:

President Biden’s statement regarding the ERA did not purport to alter the position of the United States in this matter, nor did it direct any Executive Branch official or agency to recognize the ERA’s purported ratification.

For additional information see Shattering Glass’s Statement on the Equal Rights Amendment.

President Trump and the other Defendants have continued to oppose Valame’s claim for the very same reasons as the Biden Administration. As of the day of this blog, the Ninth Circuit has not yet ruled on the motion or even scheduled the case for oral argument.

Most interestingly, all pleadings filed by Valame, a now 20-year-old college student, appear to have been written by an experienced attorney, quite knowledgeable about the ERA as well as the practice of law. It is nearly impossible to believe that Valame is representing himself, as he has asserted at every stage of the proceedings. Rather, it is nearly certain that someone is supporting his efforts. Who is backing Valame and why, particularly given that the support is shrouded in secrecy, remains somewhat of a mystery.  

Equal Means Equal v. Trump

In light of this and to ensure the rights of women are fought for by women and their supporters, on April 3rd, 2025, long-time ERA advocate and women’s rights attorney, Wendy Murphy, initiated a similar lawsuit in Massachusetts federal court seeking to enforce the ERA—Equal Means Equal v. Trump. More specifically, the Plaintiffs allege that denying women the opportunity to register for Selective Service violates the 28th Amendment (the ERA) and the Equal Protection guarantee of the 5th Amendment (the equivalent of the 14th Amendment as applied in the federal context).

The Plaintiffs emphasized the Valame case should not be the vehicle used by the Supreme Court to decide important constitutional questions about women’s fundamental rights, noting “women should have priority voice in any legal battle that seeks to determine their constitutional rights.” 

On June 17th, the Trump Administration filed a motion to dismiss, arguing (1) the case should be dismissed for lack of standing, and (2) in the alternative, the ERA is invalid because (a) it was not ratified by 38 states before the deadline expired, and, (b) even if the deadline does not apply (and the Nevada, Illinois, and Virginia ratifications are valid), five states rescinded their ratifications a the ERA still has only been ratified by 33 states. Notably, the Biden Administration never raised standing or other procedural arguments in the Valame case.

This case remains ongoing. Amicus briefs supporting the Plaintiffs and the ERA must be filed by August 1st.

WHAT’S NEXT?

Given the mystery surrounding the Valame case and all that is at stake, Shattering Glass will be drafting and organizing support for an amicus brief which we will file in the Equal Means Equal v. Trump case on August 1, 2025. Our brief will be limited to supporting the validity of the ERA as the 28th Amendment and the appropriate level of judicial review applicable to sex discrimination cases. We will not address any of the Selective Service issues raised in both cases.

If your organization is interested in learning more about these cases, what is at stake, and/or our forthcoming amicus brief, please email Nicole Vorrasi Bates, our Executive Director and General Counsel, at nvbates@shatteringglass.org. Our trusted partner, Eileen Murphy, will be assisting us garner support for the amicus brief. Eileen may be reached at eafmurphy@gmail.com.