Lawsuits argue Equal Rights Amendment is valid constitutional amendment

Decades after its first deadline, the Equal Rights Amendment is back in the courtroom as plaintiffs demand a federal judge finally recognize it as part of the U.S. Constitution.

Arguments are scheduled for March 24, 2026 in the U.S. District Court for the District of Massachusetts before Judge William G. Young in Equal Means Equal v. Trump. In a complaint filed in April 2025, Equal Means Equal (EME), a project from the non-profit Heroica Foundation, is suing the U.S. government over the constitutionality of the Military Selective Service Act.

EME claims that the Act discriminates against women by requiring only men to register for the draft. Its argument rests on two pillars: the Fifth Amendment’s Equal Protection Clause and the Equal Rights Amendment, which EME maintains, is already a ratified part of the Constitution.

Government attorneys want Judge Young to dismiss the case, pointing to a Ninth Circuit decision last year about the Selective Service Act. In Valame v. Trump, a three-judge panel rejected the claim that the ERA was ratified as the Constitution’s 28th Amendment; the case is currently on appeal. The administration also argues that a prior Supreme Court decision, Rostker v. Goldberg (1981), which upheld a male-only draft, defeats a constitutional argument to the contrary made by Equal Means Equal.

Background on the Equal Rights Amendment debate

In 1972, two-thirds of Congress approved the ERA amendment’s language as required under the Constitution’s Article V. Then it sent the ERA to the states for ratification, where 38 states’ votes were needed to formally add it to the Constitution. A joint resolution sent to the states placed a seven-year deadline (March 22, 1979) for the ratification process. In that period, only 35 states ratified the ERA amendment, and Congress extended the deadline by three years to the spring 1982. However, no other states had approved the ERA by the new deadline.

In recent years, Nevada (2017), Illinois (2018), and Virginia (2020) have voted to ratify the ERA, bringing the total to 38 (or the required ¾) of the 50 states. Five states, however—Nebraska, Tennessee, Idaho, Kentucky, and South Dakota—also voted to rescind their ratifications in the 1970s, raising the major and as-yet unaddressed constitutional question whether these recissions are legally valid.

On Dec. 17, 2024, the Archivist of the United States—the federal official responsible for ratifying new amendments— refused a request to add the ERA to the Constitution “due to established legal, judicial, and procedural decisions.” The Archivist cited opinions from the Justice Department’s Office of Legal Council in 2020 and 2022 that the ERA had legally expired and was no longer eligible for certification.

On Jan. 17, 2025, President Joseph R. Biden said that he believed the "Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment.” However, President Biden did not ask the Archivist to certify the proposed amendment to the Constitution, as required by law once the Archivist receives notice that that amendment has been ratified by three-fourths of the states.

Claiming in court the ERA is a ratified amendment

In Valame v. Trump (originally Valame v. Biden), Vikram Valame sued after claiming that he had lost an internship at the Nuclear Regulatory Commission I because he had not registered for the draft as required under the Selective Service law. The U. S. District Court for the Northern District of California ruled against Valame. The Ninth Circuit concurred in July 2025 and issued a written per curiam opinion on Nov. 4. 2025.

The Ninth Circuit rejected Valame’s allegation that a law requiring men, but not women, to register with the Selective Service System violated his rights under the Equal Rights Amendment. Valame, representing himself, had contended to the court that the ERA was ratified as the 28th Amendment to the Constitution.

“The ERA was not ratified by three-fourths of the States prior to the deadline set by Congress, June 30, 1982, and the Archivist of the United States did not publish or certify the ERA,” the Ninth Circuit concluded. “Therefore, the district court properly dismissed Valame’s claims under the ERA for failure to state a plausible claim.” It also ruled against his Equal Protection claim, citing Rostker v. Goldberg.

In Equal Means Equal, plaintiff Jacqueline Fenore and two other women were turned away when attempting to register for the draft because they were female. EME is now suing on their behalf, arguing that under the ERA, “equality of rights shall not be denied or abridged by the United States or by any state on account of sex.” The plaintiffs say that the ERA became part of the Constitution when Virginia ratified the amendment in January 2020.

“While there is some disagreement about the ERA’s validity because its ratification deadline expired before the last state ratified, many government officials and constitutional scholars believe the ERA is valid because the deadline is unconstitutional,” EME argues, pointing to Biden’s proclamation and arguments by professors Laurence Tribe and Kathleen M. Sullivan.

The plaintiffs also contend that Valame does not apply to their case, stating, “only a lawsuit filed by women on behalf of women can adequately represent the interests at stake for women.” They add that the Rostker v. Goldberg precedent is no longer controlling law, as it rested on the premise—now defunct—that women could not serve in combat roles.

The government’s argument

In Equal Means Equal, government attorneys point to prior court precedents and Valame v. Trump as reasons that the district court should dismiss the case. “To credit Plaintiffs’ ERA claim would require the Court to ignore Congress’s ratification deadlines and binding Supreme Court precedent,” they argue.

The government points to the Supreme Court’s decision in Dillon v. Gloss (1921), which upheld the inclusion of a seven-year ratification deadline by Congress for the 18th amendment, and to Coleman v. Miller (1939), which said that Congress has the power under Article V to fix a reasonable limit of time for ratification in proposing an amendment.

The attorneys also leaned heavily on Illinois v. Ferriero (2023). In that case, a D.C. district court ruled that Illinois and Nevada “had not clearly and indisputably shown that the Archivist had a duty to certify and publish the ERA or that Congress lacked the authority to place a time limit in the proposing clause of the ERA.” The government also claims that the plaintiffs lack standing, meaning that they have not proven and did not state a claim for relief.

While the Equal Means Equal case moves forward, Vikram Valame is preparing his own appeal to the Supreme Court. In January 2026, he received an extension to file a petition for a writ of certiorari. Justice Elena Kagan approved the request.

Scott Bomboy is the editor in chief of the National Constitution Center.