Vote ‘No’ on the New York ERA

This November, New York voters are being asked, via Proposal Number One—also known as the New York Equal Rights Amendment and commonly referred to as Prop 1—to vote to amend the state constitution by adding the bolded language below to Article 1, Section 11:

“No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, ethnicity, national origin, age, disability, creed, religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy, be subjected to any discrimination in their civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state, pursuant to law.

b. 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.”

Article 1, Section 11 currently reads:

“No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state”.

For the opposing viewpoint see: Vote ‘Yes’ to safeguard our fundamental rights

While the word “abortion” doesn’t appear in the text, many advocates for a New York ERA “yes” vote are motivated by the “reproductive healthcare” language, which, without using the word, essentially codifies the right to an abortion into the state constitution.

But regardless of whether you are pro-choice or pro-life, there is a whole lot more to Prop 1 than just abortion—things the “yes vote” advocates aren’t talking about.

We can all get behind the amendment’s expressed goal of equal rights for all New Yorkers. In fact, at least 22 other state constitutions currently contain ERA-type protections, with movements underway in other states to adopt them. But because the New York amendment is poorly written, its passage will trigger a myriad of unintended consequences, starting with Prop 1’s prohibition against gender discrimination. On the surface, that sounds perfectly reasonable. But the amendment’s specific wording means that:

1. Single-sex education may become illegal in New York once a petitioner sues for admission to a single-sex school opposite that of their own gender. McQuaid Jesuit, Our Lady of Mercy and charter schools like Young Women’s College Prep, Vertus, Innova Girls Academy and U-Prep may be forced to go co-ed. For generations, families and students have opted for single-sex schools because they believed that to be the best educational option for their child. Passage of Prop 1 will take that away. Why? Because single-sex education, by its very definition, constitutes “gender discrimination.”

• Women-only sports will cease to exist in New York. Going forward, women’s scholastic sports teams may be constitutionally mandated to accept biological males who wish to join their rosters.

Prop 1 also prohibits age discrimination. Let’s explore what that means. New York, like most states, and for very good reasons, currently imposes minimum age requirements to:

■ vote;
■ purchase alcohol;
■ obtain a gun permit;
■ purchase cigarettes; and
■ operate a motor vehicle.

Prop 1’s prohibition against age discrimination suggests that all those minimum age restrictions will come into question because the amendment doesn’t contain an exemption for rational minimum age requirements. It just prohibits discrimination based on “age.” Well, 12 is an “age.”

The amendment jeopardizes more than just government-related minimum age requirements. For example, passage means that senior living complexes, now restricted to residents “55 and up,” will be forced to rent to anyone, including families with noisy young children.

Does that sound preposterous, that such absurdities can’t possibly be what Prop 1 is designed to accomplish? You’re right. Those aren’t the intended consequences. But go back and reread the amendment. That’s what it says!

It gets worse. The gender-identity provisions, coupled with the anti-age discrimination prohibition, means that, should your 12-year-old child decide they want to change their sex, you as a parent will have no say in the matter. Your minor child’s right to alter their sex will become constitutionally protected. The fact that a 12-year old’s brain isn’t fully developed, that their emotions haven’t fully matured, will be irrelevant. As the child’s parent, you will have no right to intervene. Again, intentional or not, that’s what the amendment says.

Of course, parents won’t be completely powerless. You can always pack up your family and move to another state where rationality still prevails, where parental rights still exist. But why should you be forced to do that?

Remember, Prop 1 is a constitutional amendment, not simple run-of-the-mill legislation. The Legislature can’t just pass a law to correct these failings. The constitution supersedes legislation. Laws must conform to the constitution, not the other way around. The only legislative fix would be via another constitutional amendment. But that process takes a minimum of two years. By then, an enormous amount of damage will have already been done.

Could the courts find provisions elsewhere in New York’s constitution that would take precedence over Prop 1’s flawed language? Perhaps. Courts sometimes find ways to justify outcomes that a literal reading of constitutional or statutory text would seem to, on its face, prohibit. But is rolling the dice in the hope that, down the road, the courts will save us from the folly embedded in this incredibly poorly drafted amendment really a rational approach?

At the very least, the vague and expansive language in this proposed amendment will set off a torrent of litigation, forcing the courts to ultimately decide which rights and whose rights will be granted precedence. 

Opposition to Prop 1 isn’t opposition to equal rights. It’s opposition to a poorly drafted constitutional amendment that opens the door to all sorts of unintended consequences, many of which probably haven’t as yet come to light. Consequences that the “Yes” advocates aren’t talking about.

As currently written, Article 1, Section 11 already provides New Yorkers with some powerful constitutional civil rights protections.

Let’s leave it alone.

Geoff Rosenberger is retired co-founder of Clover Capital Management Inc.

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