Guest Editorial: Prop 1 is about equal rights, period. It deserves your support on Nov 5.

Lots of claims are being made about what this amendment will and won’t do. A Croton writer and activist argues we should look at the actual text.

by Signe Bergstrom

This November 5, New Yorkers will have an exciting opportunity to vote on Proposal One, the New York Equal Rights Amendment (Prop 1.) Lots of claims are being made about what this amendment will and won’t do. So let’s look at the actual text of section 11 of article 1 of the New York Constitution, which would be amended to read as follows. (Please note that text in italics is new and text in brackets is old law to be omitted.)

§ 11. 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], religion, 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 institution, or by the state or any agency or subdivision of the state, pursuant to law.

b. Nothing in this section shall invalidate or prevent the adoption of any law, regulation, program, or practice that is designed to prevent or dismantle discrimination on the basis of a characteristic listed in this section, nor shall any characteristic listed in this section be interpreted to interfere with, limit, or deny the civil rights of any person based upon any other characteristic identified in this section.

In speaking with many friends, family members, and neighbors—Republicans, Democrats, and every shade in between—I’ve noticed that where supporters of Prop 1 see equal protection, opponents see constitutional overreach, an attack on family values, and an infringement on parental rights. Interestingly, many don’t realize that abortion is also on the ballot here. That’s because, despite legal efforts to clarify it as such, the word “abortion” isn’t on the ballot measure by name, a fact that’s made the matter confusing—and frustrating—for some voters.

But here’s the deal: The U.S. Supreme Court’s 2022 decision to overturn Roe v. Wade highlighted how quickly a right that isn’t explicitly stated can be taken away. Although abortion has been legal in New York since 1970, contrary to popular belief, our state constitution doesn’t include a legal “right” to it. New York’s Reproductive Health Act is a statute that defines circumstances in which care, including abortion services, may be provided, but it’s not a rights-based framework.

Prop 1 would protect all New Yorkers’ fundamental rights and reproductive freedoms, including abortion, birth control, and IVF, at the state level—now and in the future—regardless of whether anti-abortion politicians come to power in Albany.

But Prop 1 isn’t solely about protecting our reproductive freedoms; it’s also about broadening the list of classes of New Yorkers protected from discrimination. 

John Faso, a former New York Republican congressman, says that Prop 1, by preserving protections around classes like age, could rob parents of the ability to weigh in on their children’s health care choices, including transgender reassignment surgery or puberty blocker treatments. Other opponents worry that Prop 1 will create a constitutional right for transgender girls to play on girls’ high school sports teams, while still others believe it could be a basis for non-citizen voting in New York elections.

There’s no evidence that the measure, as written, would make the state pay for surgeries or change rules for parental consent concerning their children’s health care. New York doesn’t allow minors to obtain medical care or gender-affirming care without parental consent in most cases, and this includes hormone replacement therapy and surgery.

That said, there are currently exceptions to parental consent requirements for minors seeking reproductive care, including abortion, care after sexual assault, and for the prevention or treatment of sexually transmitted diseases. But Prop 1 would not change the existing state and federal law with respect to parental consent. Similarly, it doesn’t change existing law already governing participation on sports teams. Prop 1 is consistent with Title IX, the controlling federal law that already allows children to compete on sports teams that align with their gender identity.

And what about the qualifications for voting? Prop 1 doesn’t enfranchise any new class of voters; a separate part of the state constitution already governs qualifications for voting based on citizenship status. 

 I get that these pre-existing state laws make some voters unhappy, but it’s important to note that Prop 1 exists within a proper, pre-established legal framework. Its primary goal, on this point, is to prohibit discrimination against a larger class of New Yorkers and to safeguard the legal right to reproductive healthcare. It’s not a perfect measure, but for right now, it’s the best option on the table. Some of its language is admittedly vague and it may invite legal challenges to existing laws, yes. But the sentiments behind it are sound, and it builds upon protections already guaranteed by our state constitution.

Crystal Eastman/ Library of Congress

In thinking about Prop 1, my thoughts turn towards Crystal Eastman, the pioneering organizer, author, and founder of the American Civil Liberties Union (ACLU) who, for a time, lived in Croton-on-Hudson. Eastman graduated second in her class from New York University Law School (1907) but, being a woman, was unable to find a position as a lawyer. In 1909, Governor Charles Evans Hughes appointed Eastman to New York’s Employer’s Liability Commission, where her report—as the only woman on the commission—“Work-Accidents and the Law” (1910) became the basis for the inaugural New York State Worker’s Compensation Law (better known as workmen’s compensation).

Eastman’s interest in helping to improve working conditions and pay equity would later inform her ground-breaking work in crafting the federal Equal Rights Amendment (ERA) in 1923, while she lived in Croton. While many branded Eastman a radical, others understood that she was working ahead of her time to secure the most basic legal rights for workers, and equity for women.

The United States Senate passed the ERA in 1972. Unfortunately, only thirty-five states had ratified it by 1977, and by the 1980s most lawmakers had accepted its defeat. Much has changed in the hundred years since Eastman penned the first draft of the ERA; sadly, much has stayed the same. But a good deal of what Eastman proposed has come to pass, thanks to the tireless work of lawmakers and activists who helped fuel the rise of a new gender equality jurisprudence under the 14^th Amendment’s Equal Protection Clause.

And yet, here we are, some 100 years later, still debating the most basic merits of equality and the importance of reproductive health. 

The simple truth is that equal protection means the law treats everyone equally, no matter their differences—period. Prop 1 helps safeguard reproductive healthcare and elevates almost every category of New Yorker to a protected class that can’t be discriminated against. That’s a good thing, because no New Yorker should be treated differently because of who they are.

It’s a sentiment, I’m sure, that Croton’s own Crystal Eastman would have gotten behind wholeheartedly. 

This November, flip your ballot to vote on Prop 1. For more information, please visit https://www.nycbar.org/reports/prop-1-ny-equal-rights-amendment-what-the-amendment-will-and-wont-do/

— Signe Bergstrom is a Croton-based writer and activist.

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