New York's 'equal rights' constitutional amendment restored to ballot by appeals court

ALBANY, N.Y. -- A proposed amendment to New York’s constitution barring discrimination based on “gender identity” and “pregnancy outcomes” was restored to the November election ballot Tuesday by a state appeals court.

The court decision clears the way for a statewide referendum this fall on an amendment that has been praised by Democrats as a way to protect abortion rights, and assailed by Republicans for the protections it might offer to transgender people.

In a short decision, a panel of midlevel appellate judges overturned a May ruling by an upstate judge to strike the proposed Equal Rights Amendment from the ballot.

That justice, Daniel Doyle, said state lawmakers had made a fatal procedural error in an initial round of approvals for the proposed amendment, passing it a tad too quickly without waiting for a required legal memo from the state attorney general.

In overturning that decision, the appellate division judges cited a legal technicality of a different sort: They said the people who sued to block the amendment had missed a deadline to bring their legal challenge under a four-month statute of limitations.

“This is a huge victory in our efforts to protect access to abortion in New York and to protect many vulnerable communities from discrimination,” New York Attorney General Letitia James said in a statement.

The New York Constitution currently bans discrimination based on race, color, creed or religion. The proposed amendment would add to that list ethnicity, national origin, age, disability, sex, sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes and reproductive health care and autonomy.

The proposed amendment wouldn’t explicitly preserve a woman’s right to have an abortion, but would effectively prevent someone from being discriminated against for having the procedure.

The lawsuit challenging the measure was brought by Republican state Assemblywoman Marjorie Byrnes, whose office did not immediately return an email seeking comment.

Opponents of the amendment proposal said its broad language around sexual orientation and gender could be interpreted by the courts as forcing sports leagues to allow transgender athletes to compete on female teams, or weaken parents' ability to make decisions about transgender health care.

The state Republican Party said the case will be appealed to the state’s highest court.

“We continue to believe the legislature violated the constitution when it adopted the proposal,” David Laska, a party spokesperson, said in an email Tuesday. “We will fight this proposal in the courts and, if necessary, at the ballot box.”

Former U.S. Rep. Lee Zeldin, a Republican who has lobbied against the amendment, called it “left-wing lunacy” on X after the court ruling, claiming it would infringe on free speech and permit “minors to change gender without parental notification or permission.”

Supporters of the proposed changes said it would have no impact on parent involvement in medical decisions involving children who are minors.

State Senate Majority Leader Andrea Stewart-Cousins, a Democrat, said she was “gratified that the courts dismissed this frivolous case that was brought forward by Republican extremists looking to block equal rights right here in New York.”

“Thankfully, this crucial amendment will be on the ballot this November, giving all New Yorkers the opportunity to once again lead the nation and stand up for equal rights for all,” she said.

Voters in the 2024 election would need to approve the amendment for it to become final.

Democrats in New York have hoped putting an issue related to abortion on the ballot might spur voter turnout.

Doyle's initial ruling was that lawmakers incorrectly approved the language in the amendment before getting a written opinion from the attorney general.