N.Y. Ballot Measure Would Enshrine the Left’s Social Revolution in the State Constitution

New York state Democrats are using the political salience of abortion to push for a constitutional amendment that would enshrine a range of legal protections for people who identify as transgender and illegal immigrants.

Proposal 1, otherwise known as the New York Equal Rights Amendment, will be on the statewide ballot this cycle, giving voters the chance to decide on a sweeping expansion of the state constitution's equal-protection clause that would add a variety of demographic groups and allow progressives to pursue their aims through exhaustive future litigation.

The ballot proposition would add “ethnicity, national origin, age, disability” and “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy” to the language of section 11 of article I of the New York state constitution. 

By doing so, New York would codify the most extreme elements of left-wing gender ideology into its constitution, weakening the rights of parents to protect their children from harmful transgender medical interventions, among other consequences. 

“Any statutory requirements that exist in state law that require parental consent for medical procedures for a minor, those are going to be overridden by this new constitutional right,” said John Faso, a former Republican congressman from New York who remains active in state politics.

The vague and all-encompassing language of the equal-rights amendment's anti-discrimination provisions would allow progressive groups to pursue litigation to erode parental rights, permitting confused children to receive puberty blockers without parental consent and enabling males to play sports against women and girls.

“Due to the poorly drafted language, Part B of the proposed amendment is likely to result in extensive litigation, as it challenges programs that treat people differently for commonsense reasons, such as all-boys or all-girls public schools, by labeling them as discriminatory. The broad and vague wording of this amendment will pave the way for years of legal battles based on novel legal theories,” said Paul Dreyer, a New York policy analyst at the Manhattan Institute, a conservative think tank.

The proposal would also defang efforts to enforce immigration law and could even be used to help illegal immigrants gain access to welfare benefits formerly reserved for citizens, critics warn.

“They add a term called 'national origin' to this bill of rights. Given the proclivities of New York state, I guarantee you that you will have immigrant-rights organizations saying this would give immigrants — legal or otherwise — a constitutional right to taxpayer benefits,” Faso said.

Record levels of illegal immigration under the Biden administration have made it into a top issue nationally and caused a major increase in support for immigration restrictions. Illegal immigration has become particularly pronounced in New York, a sanctuary state that has allowed more than 200,000 illegal immigrants to arrive over the past two years.

The influx has strained New York City's welfare system and exacerbated its homelessness problem, especially because the city is legally required to provide them with shelter. Democrats nationally have tried tacking to the center on immigration because of its political salience, particularly in swing-states such as Arizona and toss-up congressional districts.

A provision within the proposal that deals with prior discrimination might create a constitutional basis for reverse-discrimination programs designed to make up for past injustices. Race-based college admissions and reparations payments could fall under the scope of the new amendment, giving them legal justification.

“This could be used as a constitutional basis to defend a reparations program. So there's any number of set-asides, quotas, et cetera, that could have a constitutional veneer of justification if this amendment were to pass,” Faso warned.

To rally support for the amendment, Democrats have claimed it is necessary for protecting abortion access, even though New York already has strong abortion protections and statewide Republicans have taken a moderate position on the issue. Unlike other similar ballot initiatives, Proposal 1 does not include the term "abortion," rather it uses the more vague "pregnancy outcomes," a term that will have to be interpreted by courts after the fact. 

“Proposal 1 wouldn’t directly alter abortion protections in New York, which have been firmly established for decades,” Dreyer said. 

“As a practical matter, abortion rights in New York are already ironclad. However, the new constitutional language could be interpreted by courts as creating a state constitutional right to abortion, making it very likely that this amendment would be viewed as establishing such a right.”

New York Democrats, like the national party, are making abortion central to their messaging by accusing Republicans of supporting a national abortion ban.

With multiple toss-up congressional seats in the mix, Democrats are hoping that Vice President Kamala Harris's presence atop the ticket and the equal-rights amendment will bolster the turnout necessary to reverse state Democrats’ less-than-stellar midterm performance two years ago.

“If Prop. 1 were truly essential for safeguarding abortion rights, why did Democratic lawmakers wait until November 2024 to place it on the ballot, rather than doing so earlier in 2023? The timing suggests a strategic effort to boost Democratic voter turnout this November, particularly among suburban women who are key voters in competitive House races in ‘purple’ districts,” Dreyer added.

Conservatives are countering the Democratic messaging campaign by informing voters of what the ramifications of the equal-rights amendment would be for girls sports and illegal immigration, two issues Republicans have prioritized on the state and national level. 

“It's grassroots, it's left to right,” said Republican communications operative Bill O'Reilly, an active member of the coalition fighting back against proposition one. He is a relative of National Review founder William F. Buckley Jr. and unrelated to the former Fox News host.

“We have groups on the political left, we have LGBTQ groups that are concerned about this, some of the lesbian groups are really concerned that women's rights are suffering,” he added.

State-level Democrats are worried the opposition campaign is working, especially on the LGBT provisions of proposition one, Politico reported based on interviews with Democratic operatives and sources familiar with internal swing-district polling.

“The [girls'] sports issue is a big one. Between that and the migrant voting, illegal migrant voting, those are things that are waking people up,” O'Reilly said. “There's a lot of touch points that have brought together a really wide coalition, from Reagan conservatives to Trump populists to Bernie Sanders people. It's really quite striking.”

In his view, left-wing gay and lesbian groups have reasons to be concerned about how Proposal 1 could codify access to transgender procedures for minors, especially because many gender-confused minors end up identifying as gay or lesbian. Similarly, feminists of all stripes have reason to be alarmed about males potentially taking over women's sports and robbing girls of athletic opportunities.

Republicans have also pursued litigation against the ballot amendment over its specific language and the legislative process state Democrats used to pass it. A judge ruled in August against Democrats who sought to include the terms "abortion" and "LGBT" in the language presented on the ballot. 

Earlier this year, an appellate court ruled in favor of Democrats in a Republican lawsuit arguing that the Democrats violated legislative procedure when they asked for the attorney general's opinion on the measure after passing it, instead of during the legislative process. 

If the equal-rights amendment passes, opponents believe that it will prevent right-leaning areas from ensuring that males cannot compete in women's sports competitions. Republicans in Nassau County, a suburban county on Long Island and close to New York City, recently passed a law protecting women's sports from males who claim to be female.

“When you add gender identity and gender expression, it will create now a new constitutional argument that a … male who says [he's] now identifying as female would be able to participate in girls and women's sports teams,” Faso added.