Prop 1 explained, in painstaking detail

Early voting is underway in New York, with Election Day less than a week away. Along with races for president, Congress and the state Legislature, voters across the state will have the chance to weigh in on a proposed state constitutional amendment. Prop 1, or the Equal Rights Amendment, has drawn significant attention from both supporters and opponents. Just recently, a conservative megadonor dropped $6.5 million toward a last-minute media blitz to kill the amendment, while supporters are canvassing across the state to get the word out to vote yes.

 There have been a lot of claims made about the amendment and what it would do. Supporters have painted it as a straightforward measure protecting abortion rights and enshrining other civil rights protections in the state constitution. Opponents have asserted the proposed amendment is a veritable Pandora’s Box of chaos that will erode rights and even lead to more discrimination. Unfortunately, 30-second ads and lawn signs don’t do the nuances of the various arguments any real justice. City & State spoke with legal experts and reviewed legal arguments to get to the bottom of exactly what effects the ERA is likely to have. So if you have questions about what you’ve heard about Prop 1, hopefully this comprehensive guide provides questions to any pressing legal questions.

What is Prop 1?

Prop 1, referred to as the state Equal Rights Amendment, is a proposed state constitutional amendment that will be on the back of New Yorkers’ ballots when they vote early or on Election Day. It would change the state constitution’s Bill of Rights to expand the list of protected classes. Right now, the state constitution only explicitly prohibits discrimination based on race, color, creed and religion. If approved by the voters, the ERA would add ethnicity, national origin, age, disability and sex – including “sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes and reproductive healthcare and autonomy” – to the state constitution’s list of protected classes.

I thought this was about abortion rights?

Many proponents of the amendment have focused on enshrining the right to an abortion in the state constitution, but it’s true that the language does not literally use the word “abortion.” That has led to criticism from the amendment’s opponents, who have argued that the phrasing of the amendment is needlessly broad and vague. In an editorial urging readers to vote against Prop 1, Newsday contrasted the Equal Rights Amendment’s proposed language to a 2023 ballot measure from Ohio, which guaranteed an “individual’s right to make and carry out one’s own reproductive decisions” and specifically mentioned birth control, fertility treatments, abortion and miscarriages. 

But legal experts who support the amendment said that the ERA’s language pertaining to “pregnancy outcomes and reproductive healthcare and autonomy” would clearly protect abortion rights, as abortion is one of the four potential outcomes from a pregnancy: live birth, stillbirth, miscarriage or abortion. The argument for the broad language is that narrower protections for abortion rights could exclude protections for IVF and contraception or other unforeseen issues related to reproductive rights. Proponents have also said that if a judge became confused about the language of the amendment, the judge would likely refer back to the circumstances of its passage – in the wake of the Dobbs U.S. Supreme Court decision – and the sponsor's memo, which makes clear that it was intended to protect abortion rights. 

The proposed ERA takes a different approach to protecting abortion rights than ballot measures in other states have. Rather than just addressing abortion as a standalone issue, it aims to expand existing protections against sex discrimination to include protections for reproductive rights. “The New York ERA allows litigators and advocates to assert that restrictions on abortion constitute a form of sex discrimination, which disproportionately impacts women and reinforces gender-based inequality,” said Ting Ting Cheng, director of the Equal Rights Amendment Project at Columbia Law School, at a recent Prop 1 forum.

This is a relatively novel approach to enshrining abortion rights. Before it was overturned, Roe v. Wade prohibited abortion restrictions on the basis of a right to privacy, not rights against sex-based discrimination. Other states’ constitutions have long prohibited sex-based discrimination, but New York would break new ground by explicitly listing the right to reproductive health care as guaranteed under sex-based equality measures. Still, it may take a lawsuit to prove that abortion restrictions violate the state constitution, even if supporters are confident that judges will rule in their favor.

Does this create any new rights in the state?

Prop 1 does not create any new rights that don’t already exist under state or federal law. In fact, the state’s current Human Rights Law is much more expansive than the proposed amendment in terms of protected classes. It already prohibits discrimination based on national origin, age, disability, sex, sexual orientation, gender identity or expression, citizenship, immigration status, marital status, predisposing genetic characteristics, military status, familial status and status as a victim of domestic violence. The state Civil Rights Act already prohibits discrimination based on national origin, sex, marital status, sexual orientation, gender identity or expression and disability. Neither the Civil Rights Law nor the Human Rights Law technically includes “ethnicity,” which the proposed constitutional amendment would explicitly add, though that was arguably already covered by protections for race, color and national origin.

Current state law also guarantees abortion access in New York. The 2019 Reproductive Health Act, which updated the state’s decades-old statutes related to abortion, explicitly guarantees “the fundamental right to choose to carry the pregnancy to term, to give birth to a child, or  to have an abortion.”

Some critics of the Equal Rights Amendment have claimed that adding new classes to the state constitution will lead to a flood of new court cases to determine the ultimate scope and meaning of the protections, and how they relate to existing laws. “We’re going to have court-made civil rights policies in New York that will depend on who has the resources to and the desire to bring litigation and obtain the results that they want,” Cameron MacDonald, with the conservative Empire Center for Public Policy, told WAMC. 

It’s true that the ultimate interpretation of the amendment will most likely fall to the courts if or when challenges are brought, but this is simply the nature of civil rights law. Countless attorneys are dedicated to bringing cases to the U.S. Supreme Court to challenge or argue for certain constitutional rights. The New York constitution would not be the first time that courts would be asked to make determinations to weigh the rights of one protected class over another.

So why bother with the amendment if this all already exists in state law?

While New York state law currently includes abortion protections and prohibitions on discrimination against slew of protected classes, that could all theoretically be changed or reversed if conservatives ever won control of the state government. A GOP governor could leverage influence to roll back protections, or a Republican-controlled state Legislature could amend or repeal laws like the Reproductive Health Act and the state Human Rights Law.

The state constitution is much harder to change than any individual statute. To change the constitution, a proposal must be approved twice by two different versions of the state Legislature and then be approved by voters. Amending the state constitution would make it much harder to repeal the existing protections in state law. In that sense, the amendment is an effort by Democrats to shore up measures they support against potential Republican or conservative attempts to roll them back in the future.

How would this impact transgender athletes’ ability to participate in women's sports?

The short answer is not at all, because transgender student athletes already are able to participate on sports teams that align with their gender. One federal court found that the sex-based protections of Title IX to cover transgender students in public schools (though that decision is being challenged, and the Biden administration declined to directly address trans athletes in a recent rule change to cover other LGBTQ students, so the law there is in flux). That follows a 2020 U.S. Supreme Court ruling which found that Title VII of the Civil Rights Act, which concerns employment discrimination, applied to gender and sexuality.

In New York, transgender student athletes are already protected by both the 2010 Dignity For All Students Act, which prohibits discrimination in schools, including on the basis of one’s actual or perceived sex, and the 2019 Gender Expression Nondiscrimination Act, which updated the state Human Rights Law to include gender identity and expression. The governing body that presides over public school sports in New York has had guidance in line with state law since at least 2015 stating that students can play on teams that align with their gender identity. “This has certainly been the law of New York for quite some time,” said Katharine Bodde, senior policy counsel at the New York Civil Liberties Union. “Even before that, courts were interpreting sex discrimination protections to include protections against trans people, and the sky just has not fallen.”

Didn’t PolitiFact rate it “mostly true” that the ERA will allow “biological males” to compete in girls’ sports?

Conservatives opposed to the amendment have recently touted a PolitiFact article that rated the statement “The ERA could also mandate that schools allow biological males to compete in girls' sports” as “Mostly true,” on the basis that the ERA would enshrine protections for transgender athletes into the state constitution. The PolitiFact article concludes that the statement is mostly true – though needs clarification – because the ERA will reaffirm and strengthen existing rules protecting transgender athletes at both the state and federal levels. “Voters may not realize the state already provides protections for transgender athletes to play on teams that align with their gender identity,” the article states.

“Let's say there's a biological male that wants to play on a female's sports team,” said Bobbie Anne Cox, a conservative civil rights attorney. “Technically, you wouldn't be able to say no to them, because you can point now to the (state) constitution if Prop 1 passes and say, ‘No, they are protected constitutionally from being discriminated against because they might be genetically male, but they identify as a female.’”

It is true that the ERA’s changes to the state constitution will further shore up protections for trans students against potential changes to state law, or new federal rulings reducing the scope of Title IX protections. And that inherently would make it harder to deny transgender athletes the ability to play on teams aligning with their gender identity, if that’s something you want to prevent. But it is not true that the ERA would extend protections to transgender athletes that they do not currently have under state law.

Cox argued that Prop 1 would pit protected classes against each other – cisgender women and transgender New Yorkers – in a way that would lead to chaos in the court. But the state constitution does not currently include “sex” as a protected class, so the conflict that Cox described is one that is already one playing out in both legal courts and the court of public opinion – including at the federal level – due to existing anti-discrimination laws.

What about parental rights?

Opponents of Prop 1 have claimed that the provision that prohibits discrimination based on age will erode parental rights and create a veritable free-for-all to get rid of all laws governing minors. But there is little to no evidence that anti-age discrimination measures have resulted in courts eliminating all age restrictions. Even in states whose constitutions include age as a protected class, people under 16 years old can’t receive driver’s licenses and people under 21 years old can’t buy alcohol. In Louisiana, for example, which has had age as a protected class in its state constitution since the 1970s, a court upheld state law that required someone to be at least 21 years old to purchase a lottery ticket. And such laws continue to be in place in New York, despite the Human Rights Law already protecting against age discrimination. 

“Courts know how to manage these types of challenges to age restrictions under the law,” said Susan Cersovsky, co-chair of the Sex & Law Committee at the New York City Bar Association and the co-author of a Prop 1 fact sheet. The Bar Association has not taken an official position for or against the amendment. “And so there's cases addressing age protections in state constitutions… and the courts have found that the government maintains an interest in regulating public health and welfare.” 

Opponents of the ERA have warned in particular about the prospect of transgender teenagers being given a constitutional right to pursue gender-affirming care and other medical procedures without their parents’ consent. PolitiFact determined that Prop 1 would not allow minors to receive gender-affirming care without parental consent, though it is impossible to say for sure how an individual court may rule if a case is brought. State law currently requires that, in most cases, minors receive parental consent for any medical treatment or procedure. 

Cox, the conservative civil rights attorney, could not name any instances where a court has overturned laws restricting minors’ behavior due to anti-age discrimination measures, but she said “that doesn’t mean they’re not out there.” She said that adding things to the state constitution could provide a “base” for lawmakers to pass laws that she argued would normally not pass constitutional muster. 

Cox pointed to two bills in particular that she said would be “an extreme weakening of parental rights.” One bill would allow certain minors capable of consenting to care to receive treatment for STDs without parental consent. State regulation has permitted doctors to administer such treatment since 2017, so the law would just codify provisions already in place. A second proposed bill relates to runaway or homeless minors – but a law that went into effect last year already permits runaway and homeless youth to make medical decisions without parental consent. Changing the state constitution would not directly lead to any legislation to become law.

Courts have also ruled that the rights of parents to make decisions about their children’s upbringing and care is protected by the 14th Amendment of the U.S. Constitution. Cox acknowledged this fact but suggested that Prop 1 could supersede federal precedent in New York, which is generally not how federalism works.

Would the ERA allow for noncitizen voting?

While it’s impossible to know how a court may interpret the amendment, it’s highly unlikely that the Equal Rights Amendment would be used to enfranchise any noncitizen voters. Opponents of the amendment like Cox argue that prohibiting discrimination based on national origin would open the door to noncitizen voting. But voting is not determined by national origin; it is determined by citizenship status. The state’s current Human Rights Law includes a provision against discrimination based on citizenship or immigration status, but Prop 1 would not add that provision to the state constitution.

“Those claims are 100% false,” Bodde said. Legal experts who support Prop 1 said that similar equality amendments have never been used to expand voting rights to noncitizens. Nearby Connecticut and Massachusetts, whose state constitutions have afforded protections on the basis of national origin for decades, do not allow noncitizen voting. In fact, some state lawmakers in Connecticut are looking to amend the state constitution to allow noncitizen voting – specifically because it is not currently allowed. In New York, voting is governed by a different section of the state constitution than the one that the ERA would change. That section states that “every citizen shall be entitled to vote… provided that such citizen is eighteen years of age or over.”

Democrats in New York City are trying to permit noncitizen permanent residents and those with work authorization to vote in municipal elections and passed a law to that effect in 2021, but the law was struck down in state court as unconstitutional. City officials are appealing the decision. 

Cox argued that the passage of Prop 1 would provide a new avenue for Democrats to argue in court for noncitizen voting, since the decision is still in the process of being appealed. She said it would confuse the courts to have one section of the constitution stating that only citizens can vote and another section that states the government cannot discriminate on the basis of national origin. 

However, there is no known precedent of using an anti-discrimination measure in a constitution's Bill of Rights to expand voting rights, nor have Democrats argued that the state Human Rights or Civil Rights Laws – which already prohibit discrimination based on national origin and even citizenship status – apply to municipal voting rights. While California’s state constitution has prohibited discrimination based on national origin since the 1970s, that provision was never cited in arguments to uphold San Francisco’s noncitizen voting law for school board elections approved in 2016. 

Instead, Democrats in New York are basing their argument for noncitizen voting on the fact that the state constitution does not explicitly prohibit noncitizens from voting, but only guarantees that citizens have the right to vote – a similar legal tactic other municipalities have argued to establish noncitizen voting. The ERA would not affect this argument one way or the other.

What about Part B of this amendment? Would that legalize discrimination?

While Part A of the Equal Rights Amendment expands the list of protected classes, Part B states that: “Nothing in this section shall invalidate or prevent the adoption of any law, regulation, program, or practice that is designed to prevent or dismantle discrimination on the basis of a characteristic listed in this section, nor shall any characteristic listed in this section be interpreted to interfere with, limit, or deny the civil rights of any person based upon any other characteristic identified in this section.” Ultimately, the scope of that language and specifically how it will be interpreted will be left up to the courts.

Legal experts who support the ERA said that the purpose of Part B is to allow state lawmakers to enact laws and programs that singularly benefit members of protected classes that have faced historic discrimination, while excluding others who have not faced similar institutional prejudices. “This is a really huge step in opposition to the ways in which the Supreme Court and the federal judiciary has taken a narrow view on the meaning of equality, restricting equality for most people,” said Cheng at the ERA forum. For example, the U.S. Supreme Court recently ruled that race-based affirmative action – a prime example of the idea of “discrimination” to rectify historical wrongs against people of color, and one that conservatives have long opposed – violated the U.S. Constitution’s Equal Protection Clause.

William Jacobson, a professor of clinical law at Cornell University and founder of the conservative Equal Protection Project, argued in a New York Post op-ed that Part B of the ERA would “legalize discrimination” and criticized it as an example of critical race theory, an increasingly common boogeyman on the right often used to attack school curricula that includes non-white perspectives. “If adopted, Prop One would embed racial retribution in the form of reverse racism, critical race theory and diversity, equity and inclusion principles into the state Constitution, without most voters realizing its far-reaching effects,” Jacobson wrote in the Post. 

A brief from the Equal Protection Project described the second provision as a “loophole” and said that it would put the New York constitution out of line with federal precedent, citing the affirmative action case, and effectively invalidate existing state laws around discrimination. “Arguably, this would mean that the NY and NYC Human Rights Laws would be preempted merely by claiming the motivation was to ‘dismantle discrimination,’” the brief reads.

But Cersovsky of the New York City Bar Association said the provision is “so somebody can't bring a suit that says ‘That's discriminatory against me as a white person,’ if you're doing (something) that's designed to dismantle discrimination that's happened for the Black community.” She emphasized that the provision does not reference “permitting discrimination,” and is meant to “safeguard against using the text in an unintended fashion.” Supportive legal experts also said that the provision would protect current laws such as those that create dedicated senior housing.

In his New York Post op-ed, Jacobson also implied that Part B of the ERA would enable private actors to discriminate against New Yorkers, for example by rejecting a Black applicant because they were overrepresented in a given career. But the ERA would only apply automatically to government action, not private actors. Lawmakers would need to pass additional legislation to impact private actors such as employers or landlords, who are currently beholden to the state Human Rights Law.

Jacobson and other opponents of the ERA have also asserted that the ballot language doesn’t reference Part B at all, but that is untrue. The text that voters will see on the ballot states that the proposed amendment would allow “laws to prevent or undo past discrimination.” Whether or not that description is sufficient is arguably up for debate, but state law requires plain language to appear before voters for ballot measures.