How the NY Equal Rights Amendment could change the state constitution

On Nov. 5, 2024, New York voters will decide whether to adopt a new Equal Rights Amendment (ERA) to the state constitution.

Proposition 1, the New York State Equal Rights Amendment, seeks to expand the state constitution’s protections to prohibit discrimination based on various factors, including ethnicity, national origin, age, disability, sex, sexual orientation, gender identity, gender expression, pregnancy and reproductive health care and autonomy. This proposed amendment would significantly expand the current constitution, which only prohibits discrimination based on race and religion.

The New York City Bar Association will host a discussion on the ERA on Sept. 24 in Manhattan, where it hopes to provide insight into the amendment and what its passage could mean for the rights of New Yorkers.

The upcoming panel discussion will feature State Sen. Liz Krueger, Campaign Director Sasha Ahuja of New Yorkers for Equal Rights, and Katharine Bodde, policy co-director of the New York Civil Liberties Union.

Moderated by Jessica Neuwirth, president emerita of the ERA Coalition, the panel aims to educate attendees on the ERA’s background, significance, and its path to the ballot.

The ERA’s journey to the ballot began in 2021 with Senate Bill 108A, a concurrent resolution passed by both houses of the New York State Legislature.

To qualify for the ballot, the measure had to pass in two consecutive legislative sessions, as required by Article XIX, Section 1 of the New York State Constitution. The resolution was passed again in January 2023, allowing it to be referred to the ballot for voter approval in the upcoming election.

When the Appellate Division, Fourth Department ruled in June that the ERA would be put back on the ballot, Attorney General Letitia James praised the decision.

“Today’s decision to put the Equal Rights Amendment back on the ballot in November is a huge victory in our efforts to protect our basic rights and freedoms,” James said. “The ERA was advanced to protect access to abortion care, enshrine this basic right in our constitution, and protect people from discrimination. We will continue to do everything in our power to protect these rights and ensure everyone can live safely and freely in the great State of New York.”

Advocates argue that the amendment’s timing is crucial, particularly as fundamental protections are being rolled back across the country. The New York State Bar Association has supported the ERA and has said there is a need for comprehensive constitutional protections that cannot be easily overturned or altered. Unlike state laws, which are subject to legislative changes, constitutional amendments provide more stable and enduring safeguards.

Specifically, the amendment would prohibit discrimination based on ethnicity, national origin, age, disability and sex, including sexual orientation, gender identity, gender expression, pregnancy, and reproductive healthcare and autonomy. This is a significant expansion beyond the current protections, which only address race and religion.

By including these additional categories, the amendment aims to elevate them to constitutional status, ensuring that any government actions that curtail these rights face a higher standard of judicial scrutiny.

The amendment explicitly protects individuals from discrimination related to pregnancy and reproductive outcomes, which would secure reproductive health rights within the state constitution.

This means that the state, or any agency or subdivision thereof, would be constitutionally barred from taking actions that infringe upon a person’s reproductive autonomy. The amendment also clarifies that it does not interfere with laws or programs designed to prevent or dismantle discrimination.

In practice, this would provide stronger legal safeguards against various forms of discrimination and ensure that these rights cannot be easily overturned by future legislative changes.

New York does have anti-discrimination laws, such as the New York Human Rights Law and the Reproductive Health Act of 2019. However, the state lacks a constitutional guarantee of equal rights. The proposed amendment aims to elevate protections for gender, gender identity, sex, age, disability, and other categories to a constitutional level, making them more enduring.

The panelists at the event will address both support for and opposition to the amendment. Proponents highlight the amendment’s potential to codify protections for reproductive health and safeguard against discrimination in employment, housing, and public accommodations.

Opponents have raised concerns about the implications for religious institutions and freedom of religion. However, the amendment’s language clarifies that it does not intend to diminish existing protections outlined in the New York Constitution.