How the New York “Equal Rights Amendment” Fails Women

Oct 9

NY Prop 1 is marketed as pro-woman, but does nothing to protect the rights and spaces women actually need.

New York’s Prop 1, the “Equal Rights Amendment,” is being pitched to voters as pro-woman progress, exploiting the looming fear of a national abortion ban. But the amendment falls short of actually protecting rights, like abortion, that women need, and instead puts women’s rights at danger by eroding the ability to have single-sex spaces and services. While efforts to end discrimination can be applauded for their worthwhile goal, Prop 1 is nothing but an incoherent mix of hot-button, undefined, phrases — the result of which can only be disastrous for women’s civil rights.

Here is the text of the proposed amendment (changes in bold):

Section 1. Resolved (if the Assembly concur), That section 11 of article 1 of the constitution be amended to read as follows:

§ 11. a. 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 [or], religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy, be subjected to any discrimination in [his or her] 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.

There’s a lot wrong with the language of this amendment and its impacts on WoLF’s key issue areas. Here are our biggest takeaways:

1. Sex should never be a “strict scrutiny” characteristic

Putting sex at the same anti-discrimination level as characteristics like race and religion does not help women. Women already enjoy federal protections from discrimination in housing, education, employment, and other important areas of public life thanks to laws like Title IX and the Civil Rights Act of 1964. However, the way Prop 1 is worded would mean that sex can almost never be a trait used to exclude people — including men. This is called “strict scrutiny”, and there’s a reason that Men’s Rights Activists are widely in support of it. Prop 1 would establish strict scrutiny in New York, bringing an end to many spaces, services, and opportunities that were established for women to help us overcome centuries of discrimination. For example — scholarships for women and women-only networking events would be vulnerable to legal challenge if Prop 1 passes.

2. Some added characteristics may be worth protecting, but lack clear definitions

Prop 1 adds multiple new traits under the broader characteristic of sex, including sexual orientation, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy. Overall, we applaud the attempt to protect these characteristics from harmful discrimination. However, without clear definitions, these labels can be confusing and are at risk of being hijacked against the people they set out to help. For example, preventing discrimination on the basis of “pregnancy” could make it harder for the state to provide special aid or benefits to women who are pregnant (because it would mean treating people differently on the basis of a protected characteristic).

3. Prop 1 sets up a conflict between women’s rights and “gender identity”

By including “gender identity”, Prop 1 creates a conflict between the rights of women and the rights of men who claim to be women. In any sex-specific space that survived the strict scrutiny test, men would be able to opt-in by simply claiming to identify as women. The result is the complete erasure of all women’s spaces from the state of New York. By also using the language of “gender expression,” instead of “sex stereotypes,” the state would further enshrine into the constitution the regressive roles expected of women and men — likely the complete opposite of the intended effect. Although section b appears to address competing rights between characteristics, it still fails to adequately deal with, or even acknowledge, the conflict that arises when “sex” means whatever anyone wants it to mean. They are claiming there is no conflict. We already know this is not true from the many places we see gender identity being used to replace sex in law.

4. Prop 1 exploits women’s fear over abortion access, concealing its true impact

Despite being marketed as a pro-choice amendment that would help protect abortion access in the state amid growing fears of a national abortion ban, Prop 1 does nothing to actually protect abortion access. What it might do is prevent a woman from being discriminated against for having an abortion (although it refuses to even use the word, falling back on euphemisms like “reproductive healthcare.”

If New York wants to enshrine the right to abortion in their constitution they should just do that. Instead, they have promised women protection and delivered the complete destruction of women’s spaces. Prop 1 does not give women more rights - it takes away our right to have anything for ourselves. Women should not be expected to settle for so-called “equality” that comes at the expense of our dignity, opportunities, and safety.

We encourage the people of New York to vote NO on Prop 1 to protect women’s rights!

Support Our Work

With women’s rights under attack from all sides, our work has never been more urgent! WoLF is the only feminist 501(c)(3) that has been relentlessly fighting on the ground for over a decade to keep women’s sex-based rights intact—and we will not back down.

If you believe in protecting women's rights in law, education, and sports, please consider making a donation today.

Donate to WoLF

Note: Many of our supporters choose to give from their assets — stock gifts, grants from Donor-Advised funds, or Qualified Charitable Distributions from their IRAs. Please consider whether these “tax-smart” methods work better for you!