A proposed amendment to New York’s constitution barring discrimination based on “gender identity” and “pregnancy outcomes” cannot appear on the state ballot in November because legislators made a procedural error during an initial round of approval, a judge ruled Tuesday.
The ruling from state Supreme Court Justice Daniel J. Doyle found lawmakers incorrectly approved the language before getting a written opinion from the attorney general.
The decision removes a politically charged question from the November ballot that both Republicans and Democrats hoped would drive turnout.
Democrats passed the proposed constitutional amendment last year to bar discrimination based on “pregnancy outcomes” or “gender expression,” putting the change to voters in the 2024 election for final approval.
The amendment wouldn’t explicitly preserve a woman’s right to have an abortion. Instead, it would effectively prevent someone from being discriminated against for having the procedure, though backers have said it would have the practical effect of protecting reproductive rights.
The ruling is a blow to Democrats in New York who have sought to spur voter turnout by framing key battleground House races around abortion access, betting that their base would be encouraged to cast a ballot to protect abortion rights following the overturning of Roe v. Wade.
The New York Constitution currently bans discrimination based on race, color, creed or religion. The proposed amendment would add ethnicity, national origin, age, disability, sex, sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes and reproductive healthcare and autonomy to the list.
As the 2024 election nears, Republicans have begun to vocally criticize the amendment’s language on gender identity and expression, trying to mobilize voters with warnings about how it would allow transgender girls to play in girls sports.
Attorney General Letitia James said her office would appeal the decision.
“The Equal Rights Amendment was advanced to protect New Yorkers’ fundamental rights, including reproductive freedom and access to abortion care. This is a disappointing court decision, but we will appeal because New Yorkers deserve to be protected by their Constitution, especially as our basic freedoms and rights are under attack,” said James, a Democrat.
The lawsuit was filed by Republican state Assemblywoman Marjorie Byrnes. In a statement, Ed Cox, chairman of the New York Republican Party, applauded the ruling.
“In their rush to pass this amendment, the legislature never held a single hearing on the proposal, never consulted with outside constitutional experts, and falsely asserted this amendment was necessary to protect abortion rights in the state,” Cox said.
