If Only There Were a "Not Yet" Button for Prop1

This amendment needs amending

Photo by Josh Carter on Unsplash

This Election Day, New Yorkers will be asked to vote on Proposal Number 1, a state constitutional amendment known colloquially as the Equal Rights Amendment.

To the existing constitutional section 11, which already mandates equal protection for race, color, creed and religion, Prop 1 would add several new categories: ethnicity, national origin, age, disability,  and sex—which includes not just “pregnancy, pregnancy outcomes, reproductive healthcare and autonomy,” but sexual orientation, gender expression, and gender identity.

To liberals like me, the E.R.A, upon first reading, seems like a bonanza of progressive protections. Who wouldn’t want our constitution—the most important and powerful legal document in our state—to block discrimination by “any firm, corporation, or institution, or by the state or any agency or subdivision of the state, pursuant to law?” After all, in a post-Roe world, access to abortion isn’t ensured for anyone, even in New York, where it’s not facing any current threat. The NYCLU tells us we should vote yes, because “it will protect our rights and reproductive freedoms — including the right to abortion.”

Prop 1, they add, “will be a critical tool for all New Yorkers to exercise their rights.”

Alas, that’s not what Prop 1 is; the word abortion doesn’t even appear in the proposal. Nor, with its vague language and additional identity categories, is it a tool for all New Yorkers to exercise their rights. It might instead be a recipe for government overreach, a Pandora’s Box of untested and unexamined restrictions.

The protected categories already listed in the state constitution don’t clash with the federal constitution—they’ve been tested and defined. As this analysis by the Empire Center points out:

If approved by the voters, Prop One could open many New York civil rights laws—and other laws that may discriminate based on classification—to legal challenges. And those challenges could include irreconcilable differences between classes like religious belief and gender identity. Resolving those cases would make the courts—not the Legislature—the decision-makers on value judgments that determine civil rights policies in New York.

Let’s start with age. What does it mean to prohibit discrimination based on age? It could be interpreted any number of ways, from making early bird specials illegal to dismantling laws about statutory rape. If we can’t discriminate based on age, is senior housing illegal? Must we treat every age the same way? If so, do parents retain the ability to make decisions on behalf of their children?

Without clarifying language, we have no idea.

What does it mean when we can’t discriminate based on ethnicity? Will there be no programs aimed only at people of Arab descent? Chinese Uighurs? We discriminate whenever we form affinity groups, when we draw contours and boundaries—heck, that’s what ethnicities are: discriminatory categories.

Perhaps the most controversial aspect of Prop 1 comes with its inclusion and definition of sex. Rather than cast sex as biological categories of male and female, the reproductive classes whose gametes combined to create every single human on this earth, sex encompasses pregnancy and reproduction, along with three other components—none of which touch on biology.

These include sexual orientation—which sex or sexes one is attracted to; gender expression, which tends to mean how much someone hews or doesn’t to the material stereotypes of sex—the clothes, haircuts and colors marketed as for boys and men or for girls and women; and gender identity.

I’ve spent the last seven years writing about gender and children, in particular about gender nonconformity: girls who emerge naturally masculine, boys who emerge as girl-typical in manner or play. I don’t want them to be discriminated against. I want them to wear what they want and be left alone. But that has no place in the state constitution. If we did mandate protections of gender expression, would work or school uniforms be outlawed? Would it be illegal to charge less for men’s haircuts, as most salons do?

And what about “gender identity,” defined by a prominent youth gender doctor as a “transcendent sense of gender,” or the subjective feeling of being one or both sexes, or neither? That’s one definition. Another is that it’s a cognitive phase during which two- to three-year-olds become aware of their sex, largely based on stereotypes. Later, that gives way to gender constancy: the understanding that sex is rooted in body type, not gender expression or stereotypes.

Whether to protect and promote the more prominent definition of gender identity—a subjective feeling—above the bodily category is the stuff of a vicious societal debate. Should males who transition to live as females, even if they’ve gone through male puberty, compete in women’s sports, change in women’s locker rooms, accept prizes and scholarships reserved for girls? Do natal women and girls have sex-based rights that can or should at times supersede gender identity—for instance, in prisons, where trans women have raped natal women? If we can’t discriminate on age, and gender identity must be protected, can the state facilitate youth gender transitions without parental consent? 

That’s certainly the fear of a bipartisan ballot issue committee called the Coalition to Protect Kids-NY, which dubbed the proposal the “Parental Replacement Act.”

These questions must be asked, long before we solidify them into constitutional rights—because once changed, it’s incredibly difficult to change the constitution back, and it carries more legal weight than any other state document. We aren’t done with the debate. In fact, we haven’t even started it. Redefining sex to include every single thing but, well, sex—that opens an exponential can of worms. We're not ready to concretize what we haven't been allowed to discuss.

Efforts to raise these concerns are often dismissed bigoted and transphobic, but without open discussion of the proposal’s details, we can’t weigh the potential benefits and consequences. In my liberal circles, almost nobody even knows it’s on the ballot. Those who do think of it as an abortion bill, unaware that the word doesn’t even appear in the proposal. Remember that the goal of the original E.R.A. was to offer equal rights and protection for women. Not only does this amendment fail to do that, it risks undermining those protections. The word “woman” doesn’t appear anywhere in Prop 1, either.

The hard truth is that gender identity is sometimes in opposition to sex, not part of it. There are times when we must choose one over the other. If the definition encoded in law isn’t about sexed bodies, gender identity will always win. We must be allowed to discuss the implications of such a decision before voting on it. 

It’s a hard sell to suggest to liberals that they vote no on what’s been packaged as equal rights and preventing discrimination against vulnerable groups. I suggest another option: vote “not yet.” Check the “no” box and write to your representatives, asking them to take another stab at it, stripping it of its backdoor additions and doing what the amendment was originally supposed to: protect the right to abortion in New York State.