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Michele H.'s avatar

The vast majority of people today have no idea what’s going on. Thank you for continuing to fight this fight for truth and justice, and writing about it so we can share in our own efforts to educate people about what’s happening under their noses.

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Susan Scheid's avatar

Lisa: I can’t thank you enough for your dedication and hard work trying to pry discussion of Prop 1, and all the issues that concern us here, out of the cold, dead hands of partisanship.

Earlier this week, we had lunch with four friends we haven’t seen in a while, all Democrats and all older lesbians. They are all good, decent people. Two of them are lawyers, and all are university educated. We have tried in the past to offer information on the gender identity issue, but while they listened, it did not stick. We’d hoped to try again at lunch at least to explain some of the legal problems in Prop 1. Unfortunately, all four had already voted—and proudly—for Prop 1. Here, if it is of use to anyone else, is what we would have tried to explain (though I doubt we would have got very far, as they come from a place of zero accurate information on the entire topic, let alone Prop 1).

Liz Kreuger and others who are saying what she did on the Brian Lehrer show are in error. There are at least two important differences between existing state law (the Human Rights Law) and Prop 1.

First: unlike the existing Human Rights Law, Prop 1 specifically redefines sex to include “gender identity” and “gender expression,” rather than, as the existing law does, to list those categories alongside “sex.” The Human Rights Law thus at least allows for judicial assessments based on a conflict of rights (between sex and gender identity/expression). In contrast, Prop 1 will allow men who self-identify as women to be categorized as women for all purposes, making it impossible to even make a claim that women have a right to single-sex spaces under any circumstances.

Second: The Human Rights Law contains language that specifically allows for single-sex spaces under certain circumstances, as follows: “Nothing in this subdivision shall be construed to prevent the barring of any person, because of the sex of such person, from places of public accommodation, resort or amusement if the division grants an exemption based on bona fide considerations of public policy; nor shall this subdivision apply to the rental of rooms in a housing accommodation which restricts such rental to individuals of one sex.” As Prop 1 will override any state law provisions in conflict with the constitutional provision, this single-sex-protective language, weak though it is, will become dead-letter.

As a result, unlike the existing Human Rights Law, Prop 1 will remove any right at all for women to challenge the right of men who self-identify as women to play on women’s sports teams, be housed in women’s prisons and dormitories, and use women-only domestic violence and rape crisis shelters, public changing rooms, and public toilets. In addition, as these men will be considered women for all purposes under law, women will have no right to object to their presence in single-sex spaces, thus rendering laws against indecent exposure, voyeurism, and the like moot.

Also, to the extent any law or regulation already contains problematic language like that Kreuger described, it can be changed far more easily than the state constitution. Once Prop 1 goes into the constitution, we will never get it out—and I fear strongly that is where we are headed in New York.

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