Joe Biden assures that gender equality is now enshrined in the Constitution

Joe Biden affirmed Friday that gender equality was now enshrined in the United States Constitution, a controversial legal interpretation which opens the way to a fierce legal battle. “In accordance with my oath and my duty to the Constitution and the country, I affirm what I believe and what three-quarters of the states have ratified: the 28th Amendment is the force of law in the country,” said in a communicated the American president.

An announcement in the form of a snub to his successor, three days before Donald Trump's return to the White House. The American Congress adopted the Equal Rights Amendment (ERA) in 1972, which aimed to amend the Constitution to enshrine equal rights between the sexes. In the United States, a constitutional amendment must be ratified by three-quarters of the states, or 38 out of 50. Arguing that the ERA opened the way to unisex toilets, homosexual marriage, or even the conscription of women in the army, conservative organizations had campaigned for years against the text and had thus slowed down its ratification at the state level.

Future legal battle

It was only in 2020 that a 38th state, Virginia, ratified the amendment and it is on this basis that Joe Biden asserts that it must be included in the Constitution immediately. However, Congress had added to the text a deadline to reach this threshold of three-quarters of the states, a date passed for forty years at the time of ratification by Virginia.

The formal registration of an amendment in the Constitution is carried out by the National Archives service. However, its director, Colleen Shagan, has repeatedly assured that she will not include the ERA in the basic text, due to court decisions reaffirming the validity of the deadline. According to several American media outlets citing advisors to Joe Biden, the Democratic president will not instruct the National Archivist to publish the amendment.

His announcement on Friday would therefore mainly aim to add some weight in a future legal battle, because some jurists argue that the deadline has always been out of date. According to the New York TimesJoe Biden would thus like to force the administration of his successor Donald Trump to argue against the validity of the amendment before the courts, and therefore ultimately, against the recognition of gender equality.