Equal rights fight under Trump 2.0 shifts to the states
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Weeks into Trump 2.0, Equal Rights Amendment advocates see a bleak political landscape. Instead of focusing on the U.S. Constitution, many are zooming in on the states.
Why it matters: The century-long fight for sex equality under U.S. law faces new challenges as the Trump administration guts DEI initiatives and rolls back civil rights measures.
- Advocates tell Axios that neither litigating before the conservative Supreme Court nor attempting a two-thirds majority in a deeply polarized Congress is an immediate winning strategy.
The real momentum for the ERA lies in the states, mirroring the reproductive rights strategy since Dobbs, says Ting Ting Cheng, the director of the Equal Rights Amendment Project at Columbia University Law School.
- "What are the strategies here if we don't have hands on the levers of power right now?" she posed. "There's still so much to be done, and a lot of it resides in the states."
How it works: The federal ERA, first drafted in 1923, would establish gender equality as a constitutional right. That would include:
- prohibiting sex-based discrimination;
- strengthening legal protections against discrimination (in education, pay, health care, employment, and government programs);
- expanding protections beyond existing laws like Title IX and the Pregnancy Discrimination Act, which can be repealed or weakened.
State of play: 29 states have some form of an ERA in their state constitutions. In some states, the language is more inclusive than in the prospective 28th Amendment, Cheng says. That could potentially help groups under attack, including immigrants and trans people, she says.
- Case in point: New York's ERA, passed in 2024 includes "race, color, ethnicity, national origin, age, disability, creed [or], religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy." Nevada's ERA, passed in 2022, contains similar language.
Zoom in: Several states, including Pennsylvania, Connecticut and New Mexico, have used ERAs to defend public funding for abortion. Others including Minnesota and Vermont have active efforts to advance ERAs.
- In a case in Pennsylvania over using Medicaid funding for abortions, the state Supreme Court in 2024 declared the state's ban unconstitutional under its own ERA and sent the case back to lower courts. Still in litigation, the case is seen as one of the first major tests of whether a state ERA can safeguard residents' reproductive rights.
- Expanding existing language is also on the table in some states: A public hearing was held in Connecticut this year to consider adding gender-affirming care and abortion to the state constitution's Equal Protection Clause. Oregon is also in the process of adding reproductive rights to its ERA.
"State constitutions and state court systems are vastly under-used as protectors of individual rights," Sue Frietsche, executive director of the Women's Law Project, told Axios.
- As Frietsche put it: "For the last 50 years, we've been relying on the U.S. Supreme Court and federal Constitution as the first line of defense when individual rights are under attack. There was a time when that made a lot of sense, but that time has passed."
Between the lines: State momentum around gender equality issues has historically driven federal change, Equal Rights Advocates executive director Noreen Farrell tells Axios.
- Examples include laws around pregnancy accommodation, pay transparency and gender-based violence, she notes.
- "Meaning-making" at the state level creates a body of knowledge that federal courts can eventually draw on in interpreting an ERA, per Cheng. It gives people a chance to understand what it actually does.
Catch up quick: In a symbolic move, President Biden under pressure on his way out of office declared the ERA the "law of the land" and said the 28th prospective amendment should be considered ratified.
- Some ERA supporters argue it is already the 28th Amendment after Virginia became the 38th and final state needed to ratify in 2020. The original 1970s-era amendment had a congressionally mandated deadline of 1982.
- President Trump's Justice Department Office of Legal Counsel in 2020 issued a memo after Virginia's approval, saying it didn't matter.
What's next: Experts who spoke with Axios point to the midterm elections as the next big litmus test for the ERA, which is a political fight they say requires buy-in, power and voters' support.
- ERA Coalition leaders are also launching a public information campaign ("Correct the Constitution") to try raising awareness about their ongoing goals.
- Lawmakers will introduce ERA legislation this spring: Sens. Lisa Murkowski (R-AK) and Mazie Hirono (D-HI) will do so in the Senate, and a bill will also be introduced in the House, per advocates.
The bottom line: The state strategy is born out of necessity, but federal protections are the long game.
- "I see the states as an opportunity to do it right — to create a model which hopefully some day will bubble up to the federal level and one day give us the full panoply of rights we deserve," Frietsche says. "What we had with Roe was not enough."
