I just returned home from the rally in NYC. It wasn't that large but the speakers were good and hit all the issues. When I arrived I was sitting on a bench and Eli Erhlich sat across the way from me with an " outside agitator" tshirt. There were a handful of agitator screaming stuff but there was also a guy with a tshirt urging violence against pedophiles screaming back. I think Newsmax was covering it. I stood with a nice lady from WOLF and a Mom for Liberty from Queens. Last night a watched "On the basis of Sex" on Netflix about RBG. It made me want to cry for how women's rights are being blown up. I held a sign that said #IStandWithSallGrover.
I've talked to lots of people about this and still don't have a clear grasp. And that's, I think, because the amendment is so unclear. It doesn't say abortion directly. I think it's fine to propose an abortion amendment, and people can vote on it. I think that gender identity is not part of sex—it's anathema to sex. They interrupt one another. Many people don't understand the power of a constitutional amendment, and think anti-discrimination sounds good and we should add as many categories as possible. It's so hard to argue against that. And I don't have enough information to make a case either way. But what I can say is: we need a lot more information about this in order to vote responsibly.
Lisa, it would be really helpful if you could better indicate what the people you are consulting are thinking is unclear. Reproductive rights and autonomy are synonymous with abortion. I just don’t think there is any lack of clarity on this. What is so troublesome is not the lack of clarity, but the rock and a hard place aspect of this—on the one hand, it would enshrine reproductive rights and autonomy in the state constitution as well as in state law, but on the other hand, it redefines sex to include gender identity/gender expression, and as you so justly state, that is anathema to sex.
What’s bothersome is that the information is out there. All that is needed to clarify what the amendment does is to see its actual language, rather than interpretations of it. I understand the below to be the amendment’s actual, final language:
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], reli-
gion, 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 insti-
tution, or by the state or any agency or subdivision of the state,
PURSUANT TO LAW.
If this is correct, then abortion (via the language “reproductive healthcare and autonomy”) is included, and also, “sex” is redefined to include “gender identity” and “gender expression.” Others may feel differently, and that is of course fair enough, but unless I learn that this is not the final language of the amendment, I have enough information to know I must vote no, even though I fully support abortion rights, as once the redefinition of sex hits the constitution, we will never get it out.
I don't think it's accurate to say that "'sex' is redefined as . . ." the items listed as "included." It is not conceivable that "reproductive healthcare and autonomy" is understood in the amendment to be part of a "definition" of "sex," nor could most of the other items included. In fact, the only item that could reasonably be understood to be a redefinition of "sex" is "gender identity," and its inclusion in a list with other items indicates that "redefinition" is not what the clause is undertaking. "Including" clearly (I think!) specifies the range of elements where discrimination is prohibited that the term "sex" denotes in the statute.
I don't make this point to advocate for the amendment, which I'm undecided about (doesn't matter; I'm not a NY voter) and which seems to me poorly drafted. I'm commenting because I think the argument about "redefining 'sex'" is seriously mistaken and is designed to increase confusion and political division on an already confusing issue.
Disclosure: I'm generally in favor of non-discrimination on the basis of gender identity, but also believe some separate-sex institutions, including competitive sports, need to be protected. I see this as a conflict of goods, rather than good vs. evil. (I think these questions are frequently confused with questions about how gender dysphoria is treated medically and in minors, but I see that as a fundamentally distinct range of issues.)
I am using the terms “defined” and “included” as she does in that piece. (I would cc and paste, but I can’t do it given the format.) From what you write, I think you actually might like Burt’s solution, as made applicable to the NYS state law, which is, rather than, as now proposed, including “gender identity” and “gender expression” within what I would call the definition of “sex,” to amend the proposed legislation to add “gender identity” and “gender expression” as separate protected categories, alongside sex and the existing protected categories.
Another problematic aspect of the proposed amendment to which (I think) you allude, is the general imprecision of the language. Typical of constitutional language, terms used are not defined, but rather left to interpretation by courts and legislation/rule-making. I was thinking further on this myself, and while I wrote elsewhere that “Reproductive rights and autonomy are synonymous with abortion,” actually, the proposed constitutional language is broader, potentially including, for example, IVF and vasectomies (which I also personally support). The contours of what is covered would likely require court interpretation, and, as we have learned with Roe and other decisions, that can vary depending upon the composition of the court.
Yes, it says gender identity is part of sex. What's gender identity? What's sex? Why would identity have anything to do with sex? But that's not the issue. The issue is what happens when gender identity is codified in law. But, again, the larger issue is vagueness and how it can and may be interpreted in reality when it's so vague. We need more info and I'm working on it. But please keep talking to each other!
Lisa, I think vagueness is also a part of your use of the phrase, "part of." I can say gender identity is part of life without implying mean that "life" is being redefined as gender identity.
I think you're right that the step of codifying gender identity into law would be a significant step ("codifying" here just meaning using the term to designate a category within a statute, rather than specifying its meaning or scope). However, beyond the issue of non-discrimination I don't see it as having further implications, though that may be a failure on my part.
Hi Susan, I'm adding a reply to your comment after having read the article by Callie Burt that you recommended. I thought Burt's argument was clearly articulated and largely persuasive in identifying problems with the proposed statute (and underlying unlimited trans-rights approaches), somewhat helpful with regard to solutions, and mistaken in claiming that "sex" is redefined by the statutes.
Burt sets up a strong argument that unlimited non-discrimination entails some areas of a hard conflict of goods (protection of women vs. protection of transwomen), which include some facets that can be managed by "gatekeeping" and others that are intrinsic (chiefly sports).
I honestly don't know what is gained by making the "redefinition" claim. It appeals to a culturally anti-trans trope that takes an extreme position (those who claim that sex and gender are equally subjective) as the heart of the trans-rights position, where the overwhelming norm is in fact to distinguish between sex and gender identity while acknowledging a spectrum of identities in relation to sex. Even Burt implies this spectrum by restricting the inappropriateness of trans-women in female-only bathrooms to those who are "bepenised" (a Shakespearean term I hadn't encountered!), implying that post-op transwomen have crossed the gatekeeping threshold. Those who claim that trans-rights advocates are "redefining the meaning of 'sex'" generally point to intrinsic features that cannot be altered, such as XX vs. XY chromosomes, to invalidate any possibility of legitimate gatekeeping. I think non-extremists should not appeal to that tactic.
One aspect of these issues that is troubling to me is the asymmetrical nature of the problem. It seems to me that none of the strong arguments for resistance to equal trans rights apply to trans-men. The primary area of intrinsic difference, sports, is not a problem because there is no objection to a genetically disadvantaged individual competing against advantaged ones. And in the areas of gatekeeping, because only (some?) men are viewed as being intrinsically inclined towards "predatory" behavior the underlying issue does not apply. It seems to me that the result is that rights and protections are being denied to trans-men on the basis of concerns restricted to a different group, trans-women.
While I fully understand the "predator" concern--and can see certain contexts where it has greater force, such as prisons--I really have no idea how much data there is to indicate that it should be a significant concern. Burt's article pictures the gatekeeping need in terms of transient masquerades: cis-men who pretend to be trans-women to gain access to voyeuristic or predatory sex. Burt takes a position that *any* instance ("whatever the count may be") of this discredits the entire enterprise of equal protection. I don't think there will be any way to reach an optimal outcome on this issue if any aspect retains this type of absolutist ideal.
In sum, I don't think the problem at the center of Lisa's approach should be stated in terms of an attempt to "redefine 'sex.'" I think it would be constructive to drop that shaky claim and instead focus on the definitional vagueness of "gender identity," looking for a means to exclude the issue of transient masquerade and to narrow the range of carve-outs for stubbornly intrinsic cases, such as sports competition. (Burt suggests the UK has already provided precedent to handle some of this.) I also think it would be reasonable to expect some fine tuning to be left to court opinions to sort out over time, rather than demanding that a statute foresee and resolve all potential issues.
I respectfully disagree that adding gender identity to the definition of sex does not fundamentally change the definition. One is a biological reality, the other a toddler's cognitive phase that we've expanded and upheld as something permanent in order to obfuscate autogynephilia.
Lisa, I didn't claim that adding gender identity to the definition of sex would not change the definition--of course it would (by definition!). But including gender identity among the items listed to unpack what is included in the scope of "non-discrimination on the basis of sex" does not mean redefining the word "sex." I made the argument above. I think it is very obvious if you realize that if you claim that the statute would redefine the word "sex" to include gender identity, you would also have to claim that the statute redefines the word "sex" to include "reproductive healthcare." I think you'll agree that it's utterly implausible that anyone would claim or believe that someone else had claimed that the meaning of the word "sex" includes reproductive healthcare. What is meant is that non-discrimination in reproductive healthcare is included in the stipulation against discrimination on the basis of sex in the statute.
As a side note, I think your arguments will be stronger if you avoid gratuitous pejoratives such as "toddler's cognitive phase."
Good on you for engaging in such a thoughtful way on this, and I appreciate the intelligence and care you brought to the Burt article. One day perhaps we’ll be in the same place and can have a personal conversation, but short of that, I find it useful and interesting to get your perspective. Just a side note on the definitions issue, I suppose that, because in my lawyer life, I wrote and revised lots of definitions in contracts, that issue does not seem at all charged to me. That’s the kind of thing that a personal conversation could definitely tease out, and I am sure we would end up in a sensible place, even if we didn’t fully agree!
Thanks, Susan. I'll look for time to read Burt's chapter (really!). I don't see anything in your response that suggests substantive disagreement between us. The main difference is where you say, "what I would call the definition of 'sex'" I would probably say something like, "what I would call the scope of the category of non-discrimination on the basis of sex." Your phrase is more elegant, but I think uses "definition" in a way that is politically tendentious. (I realize you're following Burt.)
I would go to the rally if I could! (I'm in DC). Crazy (but not surprising) how the ACLU makes it all about abortion & ignores girls'/women's rights in sports, etc. It just goes to show how important it is for voters to really do the work of understanding the issues, the proposed laws, and the manipulative tactics used by these organizations and the media. And thanks for sharing the study - I'm excited for it and for the outcome. We certainly need more research in this area!
I land firmly against, but I don't think the rally poster explains the problem very well--the problems go WAY beyond women's and girls' sports. I am also concerned that the rally will be counterproductive, as it will likely feed into the partisan narrative on the issue, whereas the problems with Prop 1 as now written should concern everyone, no matter where you land politically.
I've written to all my public officials on this, and if some here want do do so as well, here's what I wrote, along with a resource that I think better explains the problems with the proposal and the reasoning behind the proposed solution.
New York State’s proposed amendment to the state constitution (A1283 and S108, 2023-24 Legislative Session)
Issue: If New York State’s proposed amendment to the Constitution passes as currently written, gender identity and gender expression, under which biological males can self-identify as women, have the potential to supersede sex for all formerly sex-based rights and single-sex spaces (including, as examples, women's and girls' sports, women’s prisons, hospital wards, refuges for women from domestic violence, public changing rooms, and public toilets).
Proposed Democratic Position: Rather than, as now proposed, defining “sex” to include “gender identity” and “gender expression,” amend the proposed legislation to add “gender identity” and “gender expression” as separate protected categories, alongside sex and the existing protected categories.
Also, while geared to the proposed Federal Equality Act, WDI has a great explainer and proposed alternative legislation here: https://womensdeclarationusa.com/equality-for-all-act/ As applicable to Prop 1, WDI proposes "completely eliminating the term “gender identity” from the document and replacing it with “nonconformity to sex-based stereotypes." While I have not done that above, as I'm following Callie Burt's proposal, WDI's position is wholly justifiable and likely much cleaner and clearer.
If you want to go that route, the proposed language above could read:
Rather than, as now proposed, defining “sex” to include “gender identity” and “gender expression,” amend the proposed legislation to eliminate the terms “gender identity” and "gender expression" and replace them with “nonconformity to sex-based stereotypes."
Finally, it is my understanding that abortion is already fully protected under New York Law, so that Prop 1, which is being sold as abortion protection, is not needed. In my view, in the context of Prop 1, it's a Trojan Horse.
Sorry, but I can't agree with you on that very last part. Abortion is CURRENTLY fully protected under NY law, yes. But laws can be changed quickly and easily. It wasn't too long ago that many anti-abortion Democratic voters were arguing that abortion was already protected nationwide under Roe, so there was really no need for legislation to do so. Now that Roe has been overturned suddenly I'm seeing many people complaining that "the Democrats should've codified abortion rights when they had the chance." (Which ignores the fact that it's been a LONG time since the Democrats held the presidency-or bicameral supermajorities-as well as both a simple House majority and a filibuster-proof 60 vote Senate majority.)
While NY is seen as very liberal, that impression has more to do with NYC than the state as a whole. Even NYC has had Republican mayors relatively recently, and the state government is much more competitive between the two parties. I actually don't think it's at all hard to imagine a time in the next, say, 10 years, when the GOP could gain enough control over the state government to significantly curtail abortion access. I don't see a high near-term likelihood of a complete state ban, but as we've seen in other states with "exceptions," those exceptions are usually designed to be almost impossible to access, and women have died and suffered permanent health consequences, including reduced or eliminated fertility, even in states that purport to allow abortion to protect the life or health of the mother. So, while I do think the various aspects of these equal rights amendments should be uncoupled, in no way is abortion access a settled right in NY, anymore than Brett Kavanaugh meant it when he said Roe was settled law nationwide.
Yes, Jen, that is a totally reasonable concern, even though there is a difference with Roe, as the problem seen with Roe was that it was case law, and not codified, so easily overturned if the wrong 9 people were put on SCOTUS. That said, for just the reasons you note, I would fully support a Prop that focused solely on elevating reproductive rights to state constitutional level protection, but unfortunately here, the price we would pay as the Prop is currently written is on Australia level horror for the rights and boundaries of women and girls. I gather it is too late for this (I don’t know the status of the court challenges to the ballot Prop), but what should happen is to withdraw the Prop as written, go back to the drawing board and get ALL stakeholder voices at the table for redrafting.
I'm thinking about going to the NYC rally today. I just want to see if someone can answer something for me. It seems like the people who are in favor of this Prop 1 are making an attempt to make it about abortion rights when it really is about concretizing more trans rights and stripping rights from parents to direct the healthcare decisions on behalf of their children. Am I reading this right? Is this called "forced teaming"?
The proposition does not say abortion in it anywhere. It says pregnancy outcomes. And it makes discrimination based on age illegal—what are the implications of that? Would that override statutory rape laws? Senior housing? I interviewed someone about the amendment but didn't feel it was helpful enough so looking for someone else to educate folks in a clear way.
So, re: age discrimination, I'm not a lawyer but I have some thoughts. Sex discrimination has been illegal for years, but it has remained completely legal for all sorts of things to be sex segregated. Granted, trans rights issues have complicated things, but not because they are arguing to abolish sex segregation; they are instead looking to redefine sex. Which is, of course, much the same thing in practice, but the semantics do actually matter when it comes to the legal foundation of things. So, presumably, the age discrimination thing wouldn't prevent things like senior housing or statutory rape laws. Other examples abound: protections against religious discrimination do not preclude certain requirements for religious beliefs among clergy or religious education teachers; protections against discrimination based on income or form of payment (ie to protect those with section 8 vouchers from being denied rentals solely because they are paying with sec 8, or to prevent those paying with food stamps from being charged different rates from those paying with other debit cards) do not preclude public housing that requires all tenants to qualify for section 8, or programs that require a low income, nor does it prevent landlords from requiring proof of income 3x the rent, etc; and disability discrimination laws do not eliminate programs and organizations open only to those with disabilities, from SSDI to the Paralympics.
In theory, age discrimination protections are to protect seniors from, say, being denied jobs simply because they are over 50. And to protect young adults from being refused housing, jobs, etc entirely on the basis of their age. It would not, however, eliminate Medicare's age requirements, or prevent insurance companies from charging higher premiums to certain age groups based on actuarial tables. And such protections ARE needed as the elderly population continues to grow. So, unless I'm missing something very unique about the age discrimination protections in this proposition, I think those concerns are misplaced.
I disagree that the concerns are misplaced. If it doesn't specify what it means, then it can be interpreted any way someone wants. But we won't know until people try. If age discrimination is illegal, then it's illegal to say you can't sleep with a 12-year-old. How is it not? It's not about what it's about in theory; it's about how it could we wielded, right?
Hi, LIsa: As I read the proposed changes to the constitution, the proposition doesn't accurately describe them. Here's the pertinent paragraph of what I believe to be the final language of the proposed constitutional changes--the all caps indicate the changes:
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], reli-
gion, 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 insti-
tution, or by the state or any agency or subdivision of the state,
I want to quickly note, though, that I share your concern that we need better information on this and appreciate that you're trying to scout that out. Could WDI be helpful here? They do now have a NY contact.
I agree that the language of this prop seems to be deliberately ambiguous. As I see it 2 lightning rods here are age and gender identity. Children need to be protected by law from predators and predatory behaviors. To allow a person to opt into an age group is problematic. If a person could claim age discrimination what would keep an adult out of teen activities? As well, women have fought for a long time to have equal rights on the basis of sex. Gender identity lobs a hand grenade into this. Just look up Tickle V Giggle in Austrailia.
Interesting point on age discrimination. I am sure the intent is to protect v. age as we have always understood it, which is actual age, not self-identified age. But these days, unless age is defined properly, it would not be beyond contemplation for gender identity to rear its ugly head here, too. Yup, definitely Australia Tickle v. giggle territory here! What a mess!
There's quite a bit of noise in trans arena about the legalization of pedophilia. Messing with language as usual, they are callling it : Minor Attracted Person
I read both reviews and I clearly land on the No side, but I'm a California resident. The against side spells out that this is not really about anti abortion laws rather trans ideology. Parents in NY better wake up to this new reality. The pro side is all about trying to hide this fact under the guise of "anti" and "rights". It's almost comical. Not to mention the pro side completely exposed themselves by saying this about the No side "using the court system to try and roll back our rights, because they know protecting abortion rights is popular at the ballot box". Lol. This is the exact reason the pro side has written the bill as if it were all about the assault on reproductive freedoms. Literally accusing one side of the exact same thing they are doing. New Yorkers Vote NO (you will lose your parental rights if you don't. This exact issue has already come to pass in CA. )
Leonore! So great to hear from you! Will you say more about that? I see people talking about intent but the law is one place where impact matters more than intent!
The Repubs dont support the trans agenda but they are also anti-abortion and would throw all women under the bus in a NY Minute. They would also love to backtrack same sex marriage.
The LibsNYCLU go on about abortion rights for women but they will also throw women under the bus to support "transsexual rights" They litigate FOR transsexuals to invade women's spaces.
I don't live in NY. I'd go with the Repubs on it but it would leave a very bad taste.
That’s shocking how the ACLU misrepresents Prop One. I guess the ends justify the means for them. Hopefully the prop is voted down and the abortion aspect is stripped out and voted on its own terms.
When you accept the existence of "gender dysphoria" - or "gender" as opposed to sex - you're already losing. "Gender" does not exist. "Gender dysphoria" does not exist. It is not an appropriate subject for scientific study any more so than unicorn biology. Reject the framework. Do not participate. Move to a sane country if need be.
Lisa, I have some questions that you may not know the answers to, but I figured I'd put them out there for you or any readers anyway.
I'm especially curious about the GOP allegation that prop 1 would entirely overturn parental consent laws with regard to gender care. I'm no lawyer, but my background in health care is telling me that that seems odd. For one thing, for all the years that Roe established a constitutional right to abortion, that right didn't preclude state laws requiring parental consent. I would like more detail on how, exactly, the legal argument goes that establishing a similar right to gender affirming care would somehow preclude any requirement for parental consent. There is a difference between making a certain type of care-take birth control access as another example-a right, and completely abolishing parental consent. Such an argument would seem to imply that adults who are under conservatorship (those with advanced dementia, severe and unmanaged psychotic illness, intellectual disability, etc) would also be able to suddenly consent to gender care when they cannot consent to anything else, medical and non-medical. That's not how that works with any other medical rights and so I would like to know the GOP theory on what would make this amendment so different.
In a similar vein, the allegation about it "likely" banning schools from notifying parents of gender transition feels a bit off, especially considering the GOP cited current DOE guidance that schools notify parents only with student consent. So, if that's already the case, what would change with prop 1? Again, if anybody has legal knowledge or has a link to some details about the legal mechanisms behind these assertions, I would love to read more.
Also, a note about the GOP article on prop 1: in the last year or so, I've heard many people justify ignoring abortion entirely to vote for Republicans based on their views on gender, justifying it by saying "the Democrats had the chance to protect abortion and didn't." Those people (in my view) are ignoring the fact that the Democrats, in fact, have not in the past few decades EVER had the presidency plus the majorities needed in both chambers of Congress to pass such a law. And, for years, anti-abortion advocates (certainly not all of them, but some) had also argued that there was no need for such a law since Roe WAS "settled law" (to quote then-prospective Justice Kavanaugh, who later turned around and voted to upend that very law) and "law of the land". I see a very similar argument in the GOP article about there being no realistic threat to abortion rights in NY. That seems to be a view drenched in hubris given the events of the past few years, in regard to abortion as well as other issues.
There are many cases where the state has interfered with families because of a lack of affirmation, and now we have many state laws in this country (different from a Constitutional amendment, which is much harder to change) that override parental authority. It doesn't have to say "this law abolishes parental control" in order for it to be wielded that way. It's okay to say no to this, and ask that they come back with a clearer proposal.
It seems obvious that this mashup of ERA is flailing away at many issues that need to be addressed individually. Parents should not be having children taken away because they refuse to have them taking dangerous drugs and surgeries of trans agenda.
I just returned home from the rally in NYC. It wasn't that large but the speakers were good and hit all the issues. When I arrived I was sitting on a bench and Eli Erhlich sat across the way from me with an " outside agitator" tshirt. There were a handful of agitator screaming stuff but there was also a guy with a tshirt urging violence against pedophiles screaming back. I think Newsmax was covering it. I stood with a nice lady from WOLF and a Mom for Liberty from Queens. Last night a watched "On the basis of Sex" on Netflix about RBG. It made me want to cry for how women's rights are being blown up. I held a sign that said #IStandWithSallGrover.
I've talked to lots of people about this and still don't have a clear grasp. And that's, I think, because the amendment is so unclear. It doesn't say abortion directly. I think it's fine to propose an abortion amendment, and people can vote on it. I think that gender identity is not part of sex—it's anathema to sex. They interrupt one another. Many people don't understand the power of a constitutional amendment, and think anti-discrimination sounds good and we should add as many categories as possible. It's so hard to argue against that. And I don't have enough information to make a case either way. But what I can say is: we need a lot more information about this in order to vote responsibly.
OK, just a some added information, here is how Governor Hochul describes the amendment in her press release. As you can see, the language quoted is as I note elsewhere: https://www.governor.ny.gov/news/governor-hochul-celebrates-passage-resolution-enshrine-equal-rights-new-york-state
Lisa, it would be really helpful if you could better indicate what the people you are consulting are thinking is unclear. Reproductive rights and autonomy are synonymous with abortion. I just don’t think there is any lack of clarity on this. What is so troublesome is not the lack of clarity, but the rock and a hard place aspect of this—on the one hand, it would enshrine reproductive rights and autonomy in the state constitution as well as in state law, but on the other hand, it redefines sex to include gender identity/gender expression, and as you so justly state, that is anathema to sex.
What’s bothersome is that the information is out there. All that is needed to clarify what the amendment does is to see its actual language, rather than interpretations of it. I understand the below to be the amendment’s actual, final language:
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], reli-
gion, 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 insti-
tution, or by the state or any agency or subdivision of the state,
PURSUANT TO LAW.
If this is correct, then abortion (via the language “reproductive healthcare and autonomy”) is included, and also, “sex” is redefined to include “gender identity” and “gender expression.” Others may feel differently, and that is of course fair enough, but unless I learn that this is not the final language of the amendment, I have enough information to know I must vote no, even though I fully support abortion rights, as once the redefinition of sex hits the constitution, we will never get it out.
I don't think it's accurate to say that "'sex' is redefined as . . ." the items listed as "included." It is not conceivable that "reproductive healthcare and autonomy" is understood in the amendment to be part of a "definition" of "sex," nor could most of the other items included. In fact, the only item that could reasonably be understood to be a redefinition of "sex" is "gender identity," and its inclusion in a list with other items indicates that "redefinition" is not what the clause is undertaking. "Including" clearly (I think!) specifies the range of elements where discrimination is prohibited that the term "sex" denotes in the statute.
I don't make this point to advocate for the amendment, which I'm undecided about (doesn't matter; I'm not a NY voter) and which seems to me poorly drafted. I'm commenting because I think the argument about "redefining 'sex'" is seriously mistaken and is designed to increase confusion and political division on an already confusing issue.
Disclosure: I'm generally in favor of non-discrimination on the basis of gender identity, but also believe some separate-sex institutions, including competitive sports, need to be protected. I see this as a conflict of goods, rather than good vs. evil. (I think these questions are frequently confused with questions about how gender dysphoria is treated medically and in minors, but I see that as a fundamentally distinct range of issues.)
Hi, Robert: thanks for responding. I commend to you Callie Burt’s analysis of the proposed federal equality law, which poses the same type of problems, and particularly her paragraph on Terminological Imprecision. https://www.dropbox.com/scl/fi/qy4bqn4cftqwv5iav77yi/Burt_2024_Chapter-9-EA.pdf?rlkey=xcpve9naiwqfh942ebwcfl9f1&e=2&dl=0
I am using the terms “defined” and “included” as she does in that piece. (I would cc and paste, but I can’t do it given the format.) From what you write, I think you actually might like Burt’s solution, as made applicable to the NYS state law, which is, rather than, as now proposed, including “gender identity” and “gender expression” within what I would call the definition of “sex,” to amend the proposed legislation to add “gender identity” and “gender expression” as separate protected categories, alongside sex and the existing protected categories.
Another problematic aspect of the proposed amendment to which (I think) you allude, is the general imprecision of the language. Typical of constitutional language, terms used are not defined, but rather left to interpretation by courts and legislation/rule-making. I was thinking further on this myself, and while I wrote elsewhere that “Reproductive rights and autonomy are synonymous with abortion,” actually, the proposed constitutional language is broader, potentially including, for example, IVF and vasectomies (which I also personally support). The contours of what is covered would likely require court interpretation, and, as we have learned with Roe and other decisions, that can vary depending upon the composition of the court.
Yes, it says gender identity is part of sex. What's gender identity? What's sex? Why would identity have anything to do with sex? But that's not the issue. The issue is what happens when gender identity is codified in law. But, again, the larger issue is vagueness and how it can and may be interpreted in reality when it's so vague. We need more info and I'm working on it. But please keep talking to each other!
Lisa, I think vagueness is also a part of your use of the phrase, "part of." I can say gender identity is part of life without implying mean that "life" is being redefined as gender identity.
I think you're right that the step of codifying gender identity into law would be a significant step ("codifying" here just meaning using the term to designate a category within a statute, rather than specifying its meaning or scope). However, beyond the issue of non-discrimination I don't see it as having further implications, though that may be a failure on my part.
Thank you Lisa for opening this discussion and for your continued digging into this!
Hi Susan, I'm adding a reply to your comment after having read the article by Callie Burt that you recommended. I thought Burt's argument was clearly articulated and largely persuasive in identifying problems with the proposed statute (and underlying unlimited trans-rights approaches), somewhat helpful with regard to solutions, and mistaken in claiming that "sex" is redefined by the statutes.
Burt sets up a strong argument that unlimited non-discrimination entails some areas of a hard conflict of goods (protection of women vs. protection of transwomen), which include some facets that can be managed by "gatekeeping" and others that are intrinsic (chiefly sports).
I honestly don't know what is gained by making the "redefinition" claim. It appeals to a culturally anti-trans trope that takes an extreme position (those who claim that sex and gender are equally subjective) as the heart of the trans-rights position, where the overwhelming norm is in fact to distinguish between sex and gender identity while acknowledging a spectrum of identities in relation to sex. Even Burt implies this spectrum by restricting the inappropriateness of trans-women in female-only bathrooms to those who are "bepenised" (a Shakespearean term I hadn't encountered!), implying that post-op transwomen have crossed the gatekeeping threshold. Those who claim that trans-rights advocates are "redefining the meaning of 'sex'" generally point to intrinsic features that cannot be altered, such as XX vs. XY chromosomes, to invalidate any possibility of legitimate gatekeeping. I think non-extremists should not appeal to that tactic.
One aspect of these issues that is troubling to me is the asymmetrical nature of the problem. It seems to me that none of the strong arguments for resistance to equal trans rights apply to trans-men. The primary area of intrinsic difference, sports, is not a problem because there is no objection to a genetically disadvantaged individual competing against advantaged ones. And in the areas of gatekeeping, because only (some?) men are viewed as being intrinsically inclined towards "predatory" behavior the underlying issue does not apply. It seems to me that the result is that rights and protections are being denied to trans-men on the basis of concerns restricted to a different group, trans-women.
While I fully understand the "predator" concern--and can see certain contexts where it has greater force, such as prisons--I really have no idea how much data there is to indicate that it should be a significant concern. Burt's article pictures the gatekeeping need in terms of transient masquerades: cis-men who pretend to be trans-women to gain access to voyeuristic or predatory sex. Burt takes a position that *any* instance ("whatever the count may be") of this discredits the entire enterprise of equal protection. I don't think there will be any way to reach an optimal outcome on this issue if any aspect retains this type of absolutist ideal.
In sum, I don't think the problem at the center of Lisa's approach should be stated in terms of an attempt to "redefine 'sex.'" I think it would be constructive to drop that shaky claim and instead focus on the definitional vagueness of "gender identity," looking for a means to exclude the issue of transient masquerade and to narrow the range of carve-outs for stubbornly intrinsic cases, such as sports competition. (Burt suggests the UK has already provided precedent to handle some of this.) I also think it would be reasonable to expect some fine tuning to be left to court opinions to sort out over time, rather than demanding that a statute foresee and resolve all potential issues.
I respectfully disagree that adding gender identity to the definition of sex does not fundamentally change the definition. One is a biological reality, the other a toddler's cognitive phase that we've expanded and upheld as something permanent in order to obfuscate autogynephilia.
Lisa, I didn't claim that adding gender identity to the definition of sex would not change the definition--of course it would (by definition!). But including gender identity among the items listed to unpack what is included in the scope of "non-discrimination on the basis of sex" does not mean redefining the word "sex." I made the argument above. I think it is very obvious if you realize that if you claim that the statute would redefine the word "sex" to include gender identity, you would also have to claim that the statute redefines the word "sex" to include "reproductive healthcare." I think you'll agree that it's utterly implausible that anyone would claim or believe that someone else had claimed that the meaning of the word "sex" includes reproductive healthcare. What is meant is that non-discrimination in reproductive healthcare is included in the stipulation against discrimination on the basis of sex in the statute.
As a side note, I think your arguments will be stronger if you avoid gratuitous pejoratives such as "toddler's cognitive phase."
Good on you for engaging in such a thoughtful way on this, and I appreciate the intelligence and care you brought to the Burt article. One day perhaps we’ll be in the same place and can have a personal conversation, but short of that, I find it useful and interesting to get your perspective. Just a side note on the definitions issue, I suppose that, because in my lawyer life, I wrote and revised lots of definitions in contracts, that issue does not seem at all charged to me. That’s the kind of thing that a personal conversation could definitely tease out, and I am sure we would end up in a sensible place, even if we didn’t fully agree!
Thanks, Susan. I'll look for time to read Burt's chapter (really!). I don't see anything in your response that suggests substantive disagreement between us. The main difference is where you say, "what I would call the definition of 'sex'" I would probably say something like, "what I would call the scope of the category of non-discrimination on the basis of sex." Your phrase is more elegant, but I think uses "definition" in a way that is politically tendentious. (I realize you're following Burt.)
I would go to the rally if I could! (I'm in DC). Crazy (but not surprising) how the ACLU makes it all about abortion & ignores girls'/women's rights in sports, etc. It just goes to show how important it is for voters to really do the work of understanding the issues, the proposed laws, and the manipulative tactics used by these organizations and the media. And thanks for sharing the study - I'm excited for it and for the outcome. We certainly need more research in this area!
In the article it's all about abortion rights but the big photo at top is all about trans rights.
The picture tells the story, don't it? -Rod S.
I land firmly against, but I don't think the rally poster explains the problem very well--the problems go WAY beyond women's and girls' sports. I am also concerned that the rally will be counterproductive, as it will likely feed into the partisan narrative on the issue, whereas the problems with Prop 1 as now written should concern everyone, no matter where you land politically.
I've written to all my public officials on this, and if some here want do do so as well, here's what I wrote, along with a resource that I think better explains the problems with the proposal and the reasoning behind the proposed solution.
New York State’s proposed amendment to the state constitution (A1283 and S108, 2023-24 Legislative Session)
Issue: If New York State’s proposed amendment to the Constitution passes as currently written, gender identity and gender expression, under which biological males can self-identify as women, have the potential to supersede sex for all formerly sex-based rights and single-sex spaces (including, as examples, women's and girls' sports, women’s prisons, hospital wards, refuges for women from domestic violence, public changing rooms, and public toilets).
Proposed Democratic Position: Rather than, as now proposed, defining “sex” to include “gender identity” and “gender expression,” amend the proposed legislation to add “gender identity” and “gender expression” as separate protected categories, alongside sex and the existing protected categories.
Resource: “Sex, Gender, and Equality in the United States: Confusion, Conflict, and Consequences,” by Callie H. Burt, in Sex and Gender, A Contemporary Reader. https://www.dropbox.com/scl/fi/qy4bqn4cftqwv5iav77yi/Burt_2024_Chapter-9-EA.pdf?rlkey=xcpve9naiwqfh942ebwcfl9f1&e=1&dl=0 (Note: While the resource identified pertains to the proposed Federal Equality Act (H.R. 15 and S. 5 118th Congress), the same logic applies to A1283 and S108.)
Also, while geared to the proposed Federal Equality Act, WDI has a great explainer and proposed alternative legislation here: https://womensdeclarationusa.com/equality-for-all-act/ As applicable to Prop 1, WDI proposes "completely eliminating the term “gender identity” from the document and replacing it with “nonconformity to sex-based stereotypes." While I have not done that above, as I'm following Callie Burt's proposal, WDI's position is wholly justifiable and likely much cleaner and clearer.
If you want to go that route, the proposed language above could read:
Rather than, as now proposed, defining “sex” to include “gender identity” and “gender expression,” amend the proposed legislation to eliminate the terms “gender identity” and "gender expression" and replace them with “nonconformity to sex-based stereotypes."
Finally, it is my understanding that abortion is already fully protected under New York Law, so that Prop 1, which is being sold as abortion protection, is not needed. In my view, in the context of Prop 1, it's a Trojan Horse.
Sorry, but I can't agree with you on that very last part. Abortion is CURRENTLY fully protected under NY law, yes. But laws can be changed quickly and easily. It wasn't too long ago that many anti-abortion Democratic voters were arguing that abortion was already protected nationwide under Roe, so there was really no need for legislation to do so. Now that Roe has been overturned suddenly I'm seeing many people complaining that "the Democrats should've codified abortion rights when they had the chance." (Which ignores the fact that it's been a LONG time since the Democrats held the presidency-or bicameral supermajorities-as well as both a simple House majority and a filibuster-proof 60 vote Senate majority.)
While NY is seen as very liberal, that impression has more to do with NYC than the state as a whole. Even NYC has had Republican mayors relatively recently, and the state government is much more competitive between the two parties. I actually don't think it's at all hard to imagine a time in the next, say, 10 years, when the GOP could gain enough control over the state government to significantly curtail abortion access. I don't see a high near-term likelihood of a complete state ban, but as we've seen in other states with "exceptions," those exceptions are usually designed to be almost impossible to access, and women have died and suffered permanent health consequences, including reduced or eliminated fertility, even in states that purport to allow abortion to protect the life or health of the mother. So, while I do think the various aspects of these equal rights amendments should be uncoupled, in no way is abortion access a settled right in NY, anymore than Brett Kavanaugh meant it when he said Roe was settled law nationwide.
Yes, Jen, that is a totally reasonable concern, even though there is a difference with Roe, as the problem seen with Roe was that it was case law, and not codified, so easily overturned if the wrong 9 people were put on SCOTUS. That said, for just the reasons you note, I would fully support a Prop that focused solely on elevating reproductive rights to state constitutional level protection, but unfortunately here, the price we would pay as the Prop is currently written is on Australia level horror for the rights and boundaries of women and girls. I gather it is too late for this (I don’t know the status of the court challenges to the ballot Prop), but what should happen is to withdraw the Prop as written, go back to the drawing board and get ALL stakeholder voices at the table for redrafting.
I'm thinking about going to the NYC rally today. I just want to see if someone can answer something for me. It seems like the people who are in favor of this Prop 1 are making an attempt to make it about abortion rights when it really is about concretizing more trans rights and stripping rights from parents to direct the healthcare decisions on behalf of their children. Am I reading this right? Is this called "forced teaming"?
The proposition does not say abortion in it anywhere. It says pregnancy outcomes. And it makes discrimination based on age illegal—what are the implications of that? Would that override statutory rape laws? Senior housing? I interviewed someone about the amendment but didn't feel it was helpful enough so looking for someone else to educate folks in a clear way.
So, re: age discrimination, I'm not a lawyer but I have some thoughts. Sex discrimination has been illegal for years, but it has remained completely legal for all sorts of things to be sex segregated. Granted, trans rights issues have complicated things, but not because they are arguing to abolish sex segregation; they are instead looking to redefine sex. Which is, of course, much the same thing in practice, but the semantics do actually matter when it comes to the legal foundation of things. So, presumably, the age discrimination thing wouldn't prevent things like senior housing or statutory rape laws. Other examples abound: protections against religious discrimination do not preclude certain requirements for religious beliefs among clergy or religious education teachers; protections against discrimination based on income or form of payment (ie to protect those with section 8 vouchers from being denied rentals solely because they are paying with sec 8, or to prevent those paying with food stamps from being charged different rates from those paying with other debit cards) do not preclude public housing that requires all tenants to qualify for section 8, or programs that require a low income, nor does it prevent landlords from requiring proof of income 3x the rent, etc; and disability discrimination laws do not eliminate programs and organizations open only to those with disabilities, from SSDI to the Paralympics.
In theory, age discrimination protections are to protect seniors from, say, being denied jobs simply because they are over 50. And to protect young adults from being refused housing, jobs, etc entirely on the basis of their age. It would not, however, eliminate Medicare's age requirements, or prevent insurance companies from charging higher premiums to certain age groups based on actuarial tables. And such protections ARE needed as the elderly population continues to grow. So, unless I'm missing something very unique about the age discrimination protections in this proposition, I think those concerns are misplaced.
I disagree that the concerns are misplaced. If it doesn't specify what it means, then it can be interpreted any way someone wants. But we won't know until people try. If age discrimination is illegal, then it's illegal to say you can't sleep with a 12-year-old. How is it not? It's not about what it's about in theory; it's about how it could we wielded, right?
Hi, LIsa: As I read the proposed changes to the constitution, the proposition doesn't accurately describe them. Here's the pertinent paragraph of what I believe to be the final language of the proposed constitutional changes--the all caps indicate the changes:
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], reli-
gion, 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 insti-
tution, or by the state or any agency or subdivision of the state,
PURSUANT TO LAW.
https://www.nysenate.gov/legislation/bills/2023/A1283
I want to quickly note, though, that I share your concern that we need better information on this and appreciate that you're trying to scout that out. Could WDI be helpful here? They do now have a NY contact.
I agree that the language of this prop seems to be deliberately ambiguous. As I see it 2 lightning rods here are age and gender identity. Children need to be protected by law from predators and predatory behaviors. To allow a person to opt into an age group is problematic. If a person could claim age discrimination what would keep an adult out of teen activities? As well, women have fought for a long time to have equal rights on the basis of sex. Gender identity lobs a hand grenade into this. Just look up Tickle V Giggle in Austrailia.
Interesting point on age discrimination. I am sure the intent is to protect v. age as we have always understood it, which is actual age, not self-identified age. But these days, unless age is defined properly, it would not be beyond contemplation for gender identity to rear its ugly head here, too. Yup, definitely Australia Tickle v. giggle territory here! What a mess!
There's quite a bit of noise in trans arena about the legalization of pedophilia. Messing with language as usual, they are callling it : Minor Attracted Person
Still spells PEDO to me.
I read both reviews and I clearly land on the No side, but I'm a California resident. The against side spells out that this is not really about anti abortion laws rather trans ideology. Parents in NY better wake up to this new reality. The pro side is all about trying to hide this fact under the guise of "anti" and "rights". It's almost comical. Not to mention the pro side completely exposed themselves by saying this about the No side "using the court system to try and roll back our rights, because they know protecting abortion rights is popular at the ballot box". Lol. This is the exact reason the pro side has written the bill as if it were all about the assault on reproductive freedoms. Literally accusing one side of the exact same thing they are doing. New Yorkers Vote NO (you will lose your parental rights if you don't. This exact issue has already come to pass in CA. )
There is too much obfuscation. I’m opposed.
Leonore! So great to hear from you! Will you say more about that? I see people talking about intent but the law is one place where impact matters more than intent!
Really is an obfuscation tour-de-force, aint it?
The Repubs dont support the trans agenda but they are also anti-abortion and would throw all women under the bus in a NY Minute. They would also love to backtrack same sex marriage.
The LibsNYCLU go on about abortion rights for women but they will also throw women under the bus to support "transsexual rights" They litigate FOR transsexuals to invade women's spaces.
I don't live in NY. I'd go with the Repubs on it but it would leave a very bad taste.
ERA indeed.
That’s shocking how the ACLU misrepresents Prop One. I guess the ends justify the means for them. Hopefully the prop is voted down and the abortion aspect is stripped out and voted on its own terms.
This "force teaming" women's reproductive rights and abortion with the rights of deluded transsexuals really pisses me off.
When you accept the existence of "gender dysphoria" - or "gender" as opposed to sex - you're already losing. "Gender" does not exist. "Gender dysphoria" does not exist. It is not an appropriate subject for scientific study any more so than unicorn biology. Reject the framework. Do not participate. Move to a sane country if need be.
Thank you Chef.
Refuse to participate in these "gender" lies. Do not comply with any pronouns or other foolishness based on some ppls fantasy world.
Sex = XX or XY End of story!
Where is this "sane country" of which you speak?
Lisa, I have some questions that you may not know the answers to, but I figured I'd put them out there for you or any readers anyway.
I'm especially curious about the GOP allegation that prop 1 would entirely overturn parental consent laws with regard to gender care. I'm no lawyer, but my background in health care is telling me that that seems odd. For one thing, for all the years that Roe established a constitutional right to abortion, that right didn't preclude state laws requiring parental consent. I would like more detail on how, exactly, the legal argument goes that establishing a similar right to gender affirming care would somehow preclude any requirement for parental consent. There is a difference between making a certain type of care-take birth control access as another example-a right, and completely abolishing parental consent. Such an argument would seem to imply that adults who are under conservatorship (those with advanced dementia, severe and unmanaged psychotic illness, intellectual disability, etc) would also be able to suddenly consent to gender care when they cannot consent to anything else, medical and non-medical. That's not how that works with any other medical rights and so I would like to know the GOP theory on what would make this amendment so different.
In a similar vein, the allegation about it "likely" banning schools from notifying parents of gender transition feels a bit off, especially considering the GOP cited current DOE guidance that schools notify parents only with student consent. So, if that's already the case, what would change with prop 1? Again, if anybody has legal knowledge or has a link to some details about the legal mechanisms behind these assertions, I would love to read more.
Also, a note about the GOP article on prop 1: in the last year or so, I've heard many people justify ignoring abortion entirely to vote for Republicans based on their views on gender, justifying it by saying "the Democrats had the chance to protect abortion and didn't." Those people (in my view) are ignoring the fact that the Democrats, in fact, have not in the past few decades EVER had the presidency plus the majorities needed in both chambers of Congress to pass such a law. And, for years, anti-abortion advocates (certainly not all of them, but some) had also argued that there was no need for such a law since Roe WAS "settled law" (to quote then-prospective Justice Kavanaugh, who later turned around and voted to upend that very law) and "law of the land". I see a very similar argument in the GOP article about there being no realistic threat to abortion rights in NY. That seems to be a view drenched in hubris given the events of the past few years, in regard to abortion as well as other issues.
There are many cases where the state has interfered with families because of a lack of affirmation, and now we have many state laws in this country (different from a Constitutional amendment, which is much harder to change) that override parental authority. It doesn't have to say "this law abolishes parental control" in order for it to be wielded that way. It's okay to say no to this, and ask that they come back with a clearer proposal.
It seems obvious that this mashup of ERA is flailing away at many issues that need to be addressed individually. Parents should not be having children taken away because they refuse to have them taking dangerous drugs and surgeries of trans agenda.
I never got this thing about if kid sez "I'm going trans" at school then the parents are told if kid agrees.
What kid is gonna go for that? If they haven't told parents already would they want school to tell parents?