A camel is a horse designed by a committee.

Once a camel gets its nose into your tent, the rest of its body will soon follow, thus wrecking your tent. [1]

 

Introduction

Rushed through the NYS legislature with little public debate,[2] an “Equal Rights Amendment” (ERA) is proposed for voter approval in November 2024.  Despite current federal and state bans of many forms of irrational discrimination, the extremist ERA purports to ban, without exception, many reasonable legal distinctions based on – among other things – age, sex (as the ERA broadly, vaguely and controversially defines “sex”), and “reproductive healthcare and autonomy.”  Most New Yorkers favor treating people fairly, but not necessarily equally.  The ERA could blur common sense legal distinctions based on age and sex, and it would endorse government favored discrimination.

The ERA attempts many things.  It has both widely agreed and controversial purposes.  It would have both deliberate and likely unintended effects.

ERA proponents acknowledge the ERA is meant to secure abortion rights.[3]  There are voters whose views on abortion/choice/life will move them to vote either for or against the ERA with little regard for any other issue.  This essay will not rehearse for Human Life Review (HLR) readers all the arguments on this topic, but will discuss how the ERA would change, not just preserve, abortion law in New York.

Instead, I argue that the ERA is not needed to protect the reasonable rights of any class.  And I answer the question “Even if it’s not needed, what’s the harm in it?” by outlining ERA’s specific risks concerning age, sex (as the ERA would define “sex”), and their intersection over parental involvement in decisions about trans-sexual medical interventions for their children, free speech, free exercise of religion, transgender athletes, and government sponsored reverse discrimination.

There are many layers to this legal onion.  As scholars and advocates peel back each layer, they can argue whether this court decision means there is no cause for concern while that phrase means disaster looms.  The honest answer is that nobody knows all the effects the ERA would have.  It would shift responsibility for deciding many questions from the democratically elected legislature to individual judges, many not yet appointed.  Though nobody now knows how the cooks will slice this onion, experience teaches that the finer you must chop it, the more likely you are to cry.

 

The Text of the ERA

It is proposed to amend Section 11 of Article I of the NYS Constitution as follows:[4]

“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.”

 

Current Protections Against Age and Sex Discrimination Make the ERA Unnecessary

New Yorkers already enjoy substantial federal and state general constitutional protections against irrational age and/or sex discrimination.  They also enjoy detailed statutory protections, both state and federal, against specific forms of such discrimination.  Not only is the ERA unneeded, its unqualified ban on age and sex discrimination of any kind threatens to override New York’s carefully crafted age and sex-based distinctions in many areas of criminal and civil law.

 

Equal Protection Laws

Both the federal and New York constitutional Equal Protection Clauses[5] forbid New York State or its municipal governments to deprive any person of the equal protection of the laws of New York.  Depending on the circumstances, courts will apply different levels of scrutiny to a law.  By the normal standard of review, the law must be rationally related to meet a legitimate government interest.[6]  In cases of discrimination affecting either fundamental rights (e.g., voting) or suspect classifications (e.g., race or religion), courts strictly scrutinize the state law to see if it is narrowly tailored to meet a compelling government interest and there is no less restrictive alternative to meet the goal.[7]  In intermediate cases, e.g., involving classification by sex, the law must be substantially related to an important governmental interest.[8]

New York courts apply much the same standards as federal courts in equal protection cases.  New York’s highest court has repeatedly found the protections of the state Equal Protection Clause are co-extensive with those of its federal counterpart.[9]

So even without an ERA, courts have – on Equal Protection grounds – invalidated state or municipal laws which discriminate based on age if they do not have a rational relation to a legitimate government interest.[10]  And those courts have invalidated laws which discriminate based on sex (at least sex as traditionally and binarily defined) if they do not have a substantial relation to an important government interest.[11]

New York has a statutory Equal Protection Clause to supplement the ones in the federal and state constitutions.  NY Civil Rights Law § 40-c (1) provides: “All persons within the jurisdiction of this state shall be entitled to the equal protection of the laws of this state or any subdivision thereof.”

 

Anti-Discrimination Laws

Specific constitutional anti-discrimination clauses differ from general equal protection clauses.  If a constitution provides specific rights or bans discrimination against specific groups, courts are more likely to find fundamental rights are implicated and so to strictly scrutinize laws alleged to violate those specific provisions or bans.

New York Constitution, Art. I, § 11, now provides: “No person shall, because of race, color, creed, or religion, be subjected to discrimination ….”  Neither the US nor the NYS constitution specifically bans discrimination based on age or sex.  But federal and state statutes do provide such bans.

For example, the federal Age Discrimination in Employment Act of 1967,[12] the Age Discrimination Act of 1975,[13] and the Workforce Investment Act of 1998,[14]  each provide specific protections against age discrimination for some or all age groups.

Titles VII and IX of the federal Civil Rights Act forbid discrimination on the basis of, among other things, sex in employment and education respectively.  And the Workforce Investment Act also bans sex discrimination in employment.[15]

At the state level, New York Civil Rights Law (CRL) § 40-c(2) provides: “No person shall, because of race, creed, color, national origin, sex, marital status, sexual orientation, gender identity or expression, or disability … be subjected to any discrimination in his or her civil rights, or to any harassment … in the exercise thereof ….”  And CRL § 19-a forbids real estate cooperatives to withhold consent to sale of an ownership interest because of the sex of the purchaser.

There are at least nine specific provisions of the New York Human Rights Law which make it an Unlawful Discriminatory Practice (UDP) to discriminate because of age in employment, publicly assisted housing, housing, education, or credit.[16]

There are at least thirteen specific provisions of the Human Rights Law making it a UDP to discriminate because of sex, sexual orientation, or gender identity or expression in (as for age) employment, publicly assisted housing, housing, education, or credit,[17] but also in public accommodation, real estate, fire department membership, and economic boycotts.[18]

Even without the ERA, New Yorkers enjoy many and broad constitutional and statutory protections against age or sex discrimination, under both federal and New York law.

 

Current Common Sense Legal Age and Sex Distinctions Are at Risk Under the ERA

New York’s anti-discrimination laws are reasonably substantial, but they are not absurdly absolute.  Rather, New York has chosen to balance those protections with many common sense, rational age and sex-based distinctions in both our criminal and civil statutes. The ERA would likely wipe out, or substantially erase, many of these distinctions, balanced over decades of experience, by creating new strict bans on age and sex discrimination of any kind, for any reason, even good, legitimate reasons.

In light of existing federal and state protections against unreasonable age and sex discrimination, the ERA is unnecessary.  Yet, one might ask “Even if it’s not needed, what’s the harm in it?”  The key to the answer is that constitutional law (which the ERA would be) overrides inconsistent statutory or regulatory law.[19]  The answer is that the ERA would – deliberately or unintentionally – upset well-crafted solutions to age or sex-related issues.  And nobody knows where the limit (if any) of that revolution might be.

ERA-proponents may argue that my fears are exaggerated.  Yes, some sensible statutory distinctions of age[20] or sex[21] might withstand rational, intermediate or even strict constitutional scrutiny. And yes, even in cases where parts of a law are found unconstitutional, judicial doctrines of interpretation and severance might allow the rest of that law to stand.[22]

But it is clear that the ERA would put a thumb on the scale and in some cases upset the common sense balances struck by the legislature and supported by New Yorkers.  Nobody knows which of those fine-tuned distinctions will be swept aside.  Examples follow of what could be at risk.

 

Criminal Law Age Distinctions

New York criminal law makes some notable age distinctions.  “Statutory rape” laws penalize misconduct based in part on the age of the offender or the victim.  “Youthful offender” laws provide different procedural, sentencing and post-conviction treatment for offenders based on their age.  With exceptions, infancy is an affirmative defense.  The ERA would put all three sorts of laws at risk.

New York criminalizes conduct by which an older person sexually abuses a younger person, even with the latter’s so-called “consent.”  For example, an offender age 18 or older who has sexual intercourse with a victim under the age of 13, or an offender of any age who has sexual intercourse with a victim under the age of 11, commits rape in the 1st degree.[23]  Other sexual behaviors between persons of specified ages are criminalized as rape in the 2nd or 3rd degree, criminal course of sexual conduct against a child in the 1st or 2nd degree, or predatory sexual assault against a child.[24]

If the ERA becomes NYS constitutional law, a defendant accused of rape (or another Article 130 crime) based on defendant’s age might defend on the ground that it is unconstitutional to make the conduct a crime (or a more serious crime) based on defendant’s age.  The defense might allege that such discrimination because of age would deprive him/her of a civil right (namely, a right not to be charged or convicted) that is granted to younger defendants who commit the same acts.

One cannot know for sure what level of scrutiny a New York judge might apply, but – because criminal penalties are at stake – it might be strict scrutiny.  And, if a judge finds that “statutory rape” laws violate the ERA ban on age discrimination, one cannot know what remedy the judge might choose to make things “equal.”  One might subject younger defendants to the same risk of conviction run by older ones who commit the same acts, while another might forbid convicting older defendants of crimes for which a younger defendant could not be convicted, while yet another might require the legislature to choose.  Any of these prospects is alarming.

Also, if the ERA becomes law, a defendant accused of an Article 130 crime based on “consensual” sex with a child under a statutorily proscribed age might defend on the ground that it is unconstitutional to make defendant’s conduct a crime (or a more serious crime) based on the age of the victim.  In other words, one might argue that conviction of the crime charged – based upon discrimination because of the age of the victim – would deprive defendant of a civil right (namely, the right to engage in consensual sex with a person either over or under, even far under, age 17.

Again, it is hard to predict whether – in order to comply with an ERA ban on age discrimination – courts will treat abusers of older victims as harshly as abusers of younger ones, or instead treat abusers of younger victims as leniently as abusers of older ones.  It is also unpredictable – if the NYS legislature were to be constitutionally compelled to eliminate such age discrimination – which choices it would make.  Either prospect would be alarming, albeit to different groups for different reasons.

NYS provides different procedural, sentencing, and post-conviction treatment for juvenile delinquents (usually age 7 to 17, maybe younger),[25] juvenile offenders (age 13, 14, or 15),[26] adolescent offenders (age 16 or 17),[27] and youthful offenders (age 16, 17, or 18),[28] as those terms are defined by statute.  Depending on the age of the offender and the crime charged, the special treatment for young offenders may include: sealing of the accusatory instrument, diversion to Family Court, sealing of the dispositional records, avoidance or shortening of imprisonment, and avoidance of ineligibility for public office or public employment or for certain licenses, all of which benefits might otherwise be unavailable to older offenders.

Penal Law, Section 30.00(1) generally provides that a person less than eighteen years old is not criminally responsible for conduct.  However, there are exceptions.  Section 30.00(2) makes persons thirteen, fourteen, or fifteen years of age criminally responsible for acts constituting certain serious named crimes, and Section 30.00(3) similarly makes persons seventeen years of age responsible for acts constituting certain named offenses.

If the ERA becomes NYS law, a defendant, perhaps an older teenager, might claim that he/she should have the same affirmative defense of infancy now granted to younger defendants, especially defendants less than a year younger, arguing that it is irrational to distinguish between a 17-1/2 year old and an 18-1/2 year old (or between a 15 year old and a 12 year old)..

If the ERA becomes NYS law, a defendant aged 19 or older might seek court treatment now reserved for those under 19, such as sealing the accusation or disposition, avoiding imprisonment, or avoiding ineligibility for public office or employment.

One cannot know for sure if a judge would find such age distinctions constitutional under the ERA or, if not, whether eligibility for special treatment would be denied to all or granted to all.

Civil Law Age and Sex Distinctions

New York makes many reasonable legal distinctions based on age.  The Constitution requires that voters be at least 18 and the governor, at least 30 years old.[29]           Statutory age distinctions include: graduated ages for motor vehicle operation,[30] permits and regulations of work conditions for employment of children under age 18,[31] and minimum ages to purchase, possess, or consume alcohol[32] or marijuana.[33]

 

The NYS Human Rights Law (HRL)[34] defines various unlawful discriminatory practices (UDPs) against at least eleven protected classes, including:

–  four classes now protected in the NYS Const., Art. I, § 11, namely: race, color, creed, and religion;

–  four of the five classes proposed to be added by the ERA, namely: national origin, age, disability and sex (as sex would be broadly defined), but not ethnicity; and

–  three classes not mentioned in, or proposed for, § 11, namely: those convicted of a crime, those accused but not convicted of a crime, and victims of domestic violence.

 

The HRL makes reasonable exceptions based on age to what would otherwise be UDPs.  For example:

–  Two employment UDPs do not effect restrictions upon the activities of persons licensed by the State Liquor Authority with respect to persons under 21 years of age.[35]

–  The employment age discrimination UDP only applies to persons aged 18 or older and permits compulsory retirement programs for certain employees age 65+ and others age 70+.[36]

–  Some age in housing UDPs do not apply those under 18 or to certain senior housing accommodations for persons age 62+ or 55+.[37]

–  Nothing in the housing accommodation UDPs shall prevent the offer or acceptance of senior discounts to a person aged 65 or older.[38]

–  The age in credit and lending UDPs do not apply to persons under the age of 18, and it is not a UDP to consider age in determining credit worthiness when age has a demonstrable and statistically sound relationship to a determination of credit worthiness.[39]

 

The HRL makes reasonable exceptions based on sex to what would otherwise be UDPs.  For example:

–  The public accommodation UDP does not apply to the rental of rooms in a housing accommodation which restricts such rental to individuals of one sex.[40]

–  The publicly-assisted housing accommodation UDP does not restrict the rental of rooms in school or college dormitories to individuals of the same sex.[41]

–  The education UDP does not apply to same sex schools which may limit admission to students of only one sex.[42]

–  Three housing UDPs do not apply to the restriction of the rental of all rooms in a housing accommodation to individuals of the same sex.[43]

ERA supporters cannot say which of these common sense legal distinctions will be the first, or the last, to be scrapped under the ERA.  Would it be teen drivers’ licenses, alcoholic beverage age requirements, single sex schools, senior discounts for housing, senior retirement communities, or something else?  Nobody knows.

 

Abortion

Although the ERA does not mention “abortion” explicitly, the proposed ban of discrimination because of “pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy” is a pro-abortion measure.  Its sponsors and supporters say so.[44]

Despite the firm establishment of legal, even celebrated, abortion in NYS, pro-abortionists have argued that the NYS ERA is “an important step toward protecting reproductive rights and access in New York following the U.S. Supreme Court’s wrongful decision to end the federal constitutional right to abortion, established by Roe v. Wade.”[45]  But the Supreme Court in Dobbs[46] has not made abortions illegal; it has only held that U.S. Constitution leaves the states free to permit, regulate or prohibit them.  New York has permitted them with virtually no restrictions, and since Dobbs continues to do so at the rate of about 10,000 per month.[47]

The argument that the ERA is needed to protect abortions in New York is far-fetched, based on a fear that some combination of legislators, executives and/or judges might soon come to power in NYS and so threaten – even at the margins – the right to abortion for any or no reason, at any time, by any means.  The argument is based also on a fear of democratic debate.

Since before Roe v. Wade, New York State has only lightly governed abortions.  Since 2019, Public Health Law § 2599-bb permits a licensed health care practitioner, acting with reasonable, good faith professional judgment, to perform an abortion when: “the patient is within twenty-four weeks from the commencement of the pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient’s life or health.”  This was enacted by a “pro-choice” legislature.

Because constitutions override conflicting statutes,[48] approval of the ERA barring discrimination because of “pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy” would override the modest limits of PHL § 2599-bb, even in the case of a woman carrying a 35-week-old, fully formed, healthy fetus, even where a physician can find no medical reason for an abortion to protect her life or health, even her mental health broadly defined.  With ERA-based “autonomy,” the patient could even dictate to the physician the method of abortion and force a state hospital to perform it and in some cases to pay for it.

Some New Yorkers hope the current pro-choice/abortion legislative majorities continue to dominate state politics indefinitely.  If those hopes are realized, they have no need of an ERA to protect against discrimination because of “pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy.”  Other New Yorkers hope to persuade pregnant women to choose non-abortion options, to persuade voters and their elected legislative representatives to enact reasonable regulations of abortion such as requiring consent to be preceded by information about fetal biology, ultrasonograms, or adoption options, or requiring abortion clinic inspections or reporting of abortion complications data.  Some even hope someday, by the democratic process, to limit or abolish the desire for, and availability of, abortions.  What do ERA proponents fear about giving their fellow citizens the opportunity to persuade their legislative representatives without constitutional constraint?

New York now offers statutory conscience protections to persons for whom the performance of an abortion is contrary to his/her conscience or religious beliefs.[49]  Nobody can say for sure just how the ERA’s elevation of rights based on “pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy” would be reconciled with such conscience rights.  But surely conscience rights would be no stronger.

 

Age, “Sex,” Gender, Healthcare and Autonomy: The Whole Is Worse Than Its Parts

ERA rights based on age and sex, particularly since “sex” is expansively defined to include “sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy,” would combine to limit parents’ ability to raise and protect their children, limit free speech about so-called transgender persons, censor the public, even private, expression of religious views concerning sex and gender, and change the way athletes compete.

 

Adolescent Gender Dysphoria

“Sex” is traditionally and scientifically understood as binary, occurring in one of two male-female forms distinguished by genetic, anatomical and hormonal differences.  As such it is distinct from sexual orientation, gender identity, gender expression, etc.[50]  The ERA would revolutionize the definition of sex, expanding it to include these other elements, but without clearly defining them.  This would leave the interpretation of what is “sex” in the hands of judges and ideological advocates.

The US Supreme Court has long recognized a fundamental constitutional right of parents to direct and control the education of their children.[51]  New York courts have held that parents have similarly fundamental rights to the custody, education and much health care of their children.  New York’s highest court has said: “Fundamental constitutional principles of due process and protected privacy prohibit governmental interference with the liberty of a parent to supervise and rear a child except upon a showing of overriding necessity.”[52]  Parental rights are balanced by the state’s authority to legislate on matters affecting the welfare of children, sometimes to the extent of overriding parents’ rights.[53]

The ERA would tip that parent-child-state balance away from parents and toward a combination of vulnerable teens and non-family members, perhaps with ideological biases.

The current rights of New York minors to make their own medical decisions without the knowledge or permission of their parents or guardians are too complex to discuss fully here.  Those under age 18 who are married, pregnant, parents, incarcerated, in the military, or otherwise “emancipated”[54] are legally permitted – if they have mental capacity – to make most of their medical decisions in NYS.  NYS minors with capacity who are not so emancipated can nonetheless make confidential decisions about certain kinds of care, such as for contraception, pregnancy, abortion, or sexually transmitted disease; they can make their own confidential decisions for some mental health care, or some substance abuse care.[55]

In notable exceptions, federal, NYS and NYC regulations restrict the sterilization of those under age 21.[56]  These regulations likely restrict some so-called transgender interventions for minors, including – but not limited to – irreversible genital surgeries.

An unemancipated NYS minor, even one with mature and intelligent capacity, does not now have the legal right to make non-emergency medical decisions (except those above such as for non-sterilizing contraception, pregnancy, abortion, STDs, mental health, and substance abuse) without the knowledge and permission of a parent or legal guardian.

Teenagers who believe that “their gender identity does not match the sex they were assigned at birth,” might receive some confidential mental health services for their gender dysphoria.  NYS rules prohibit discrimination based on “gender identity, self-image, appearance, behavior or expression.”[57]  NYS rules provide that discrimination based on gender identity or the status of being transgender constitutes sex discrimination.[58]  Nonetheless, no NYS law now permits unemancipated NYS teenagers, even those with capacity, to consent on their own to medical treatments purporting to change a male to a female, or vice versa, especially treatments causing irreversible sterility.

However clear or muddled the current mix of statutory, regulatory, and judge-made laws concerning consent to transgender medical care of unemancipated NYS minors might be, the ERA would change it.  The ERA would elevate, without any stated limit, rights based on age, “sex” defined to include gender identity, gender expression, and autonomy.  The ERA would tip decision-making away from loving parents and toward distressed and vulnerable teens counseled by bureaucrats and ideologues.  The result would be more irreversible psychiatric, hormonal, and surgical damage to children without parental involvement or even knowledge, much less consent.

 

Pronouns, Free Speech, and Free Exercise of Religion

The ERA would substitute the plural pronoun “their” for the singular pronouns “his or her” when referring to the singular antecedent “person.” This is unnecessary and silly.  But there is more than a debatable point of grammar here.  In common usage, awkward language to avoid gender-specific language might be harmless.  But in legal usage, every word matters.  The ERA’s substitution supports a delusional departure from the facts of life, and from the reality of two sexes,[59] no matter how many “gender expressions” there might be in theory.

The pronoun swap is not needed to bar discrimination against males or females.  It must be meant to support arguments that depend on the purported abolition of the two-sex world and/or the purported addition of other “sexes.”  Whatever the arguments for easing discrimination based on gender expression, the revolutionary destruction of coherent description of the two (and only two) sexes cannot be conducive to sustainable social and legal policy based on biological realities.

When interpreting legal texts, judges are often guided by the “surplusage canon.”  If possible, every word and every provision is to be given effect (verba cum effectu sunt accipienda).  None should be ignored.  None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.[60]  Courts would look for some meaning in the word “their;” they might decide the pronoun means there are more than two sexes and so the ERA would require society to reorganize itself according to that view.

Those suffering from gender dysphoria deserve our compassion and protection from unnecessary and socially unproductive discrimination.  But they do not deserve a constitutional requirement that governments, firms, corporations and institutions join in their delusions about sex.

Pronoun police are a literal threat to free (and grammatical) speech.  In 2021, a Canadian court sent the father (Robert Hoogland a/k/a “C.D.”) of a teenage girl to jail for contempt of court after he spoke publicly about the family’s case.  Reports differ about why the publicity offended the court.  Some say it was because the father used female pronouns to refer to his daughter who (with court approval) wished him to use male pronouns.  Others say it was because public discussion endangered the child’s privacy.  No matter the reason for the jailing, it is clear that the court approved a medical transition for the teenager over the father’s objection and he was not allowed to discuss it publicly.[61]

Closer to home, U.S. states have tried, sometimes successfully, to limit the parental rights of those who express religiously based dissent from governmental transgender orthodoxy.  For example, Washington denied the application of a Seventh Day Adventist couple to foster (with an eye to adopting) their infant great-granddaughter, based solely on their answers to a series of hypothetical questions about a foster child who might in the future develop or identify as LGBTQ+.  A federal court allowed the state to take LGBTQ+ considerations into account when reviewing foster care applications, but enjoined it from using applicants’ answers to LGBTQ+ hypotheticals as the sole determining factor when the applicants express sincerely held religious beliefs, and sent the case back to the agency for further processing of the application.[62]  Because two parents, consistent with their Catholic beliefs, would not refer to their teenage son using pronouns and a name inconsistent with his biological sex, Indiana removed him from the home, placed him in a “transition-affirming” home, imposed a gag order on them, and restricted their visitation.  Courts have upheld Indiana’s position.[63]  Massachusetts has rejected the application of a couple to become foster parents, despite their expressed willingness to love and accept any child no matter the child’s future sexual orientation or struggles with gender identity, because they said they would continue to hold their Catholic beliefs about gender and human sexuality; the couple’s lawsuit is pending.[64]

Supporters of the ERA may deny that it would unfairly impinge on rights of free speech or religious liberty.[65]  But their general position before November 2024 may well change for specific cases after any ratification.  Recall that the SCOTUS majority in Obergefell, which imposed same-sex marriage upon all states as a federal constitutional right, claimed that advocacy (whether based on religious conviction or secular belief) against same-sex marriage would continue to be protected.[66]  This despite dissenting warnings that the creation of a right to same-sex marriage would inevitably conflict with the free exercise of religion under the federal constitution.[67]  The war between these rights continues at the federal level, with some skirmishes decided on procedural[68] or free speech grounds.[69]  But the main battle on free exercise of religion grounds has not yet been fully joined at SCOTUS.  And until SCOTUS decides that issue, if ever it does, NYS constitutional law might fill the vacuum.  The NYS ERA threatens to deprive churches, synagogues, mosques, religious hospitals and adoption agencies of their liberty to speak, preach, and act on their beliefs about divine creation of only two sexes, because they do not align with radical gender orthodoxy.

Whatever flexibility a New York court might now have to deal with similar family disputes about gender and pronouns, even discussions based on the parents’ religious views, would be further limited by an ERA that forbids discrimination based on age, sex, gender identity, gender expression and autonomy.

 

Transgender Athletes

NYS’s ERA threatens to upset reasonable sex-based rules for scholastic, collegiate, amateur and professional sports.  While the benefits of sport should be fairly and safely available to all regardless of sex, to males, females and “trans” persons, the ERA would go further to disregard safety and fairness than any other state, or the bodies regulating sports.

The 1972 federal Title IX has led to many more scholastic and collegiate female sports leagues and teams.  Some women have competed in men’s sports.  But few, if any, females who identify as males have sought to participate in male athletic events.  On the other hand, when males who identify as females seek to compete in events once reserved for women, it makes news and generates controversy.

Consider William (later named Lia) Thomas who competed for the University of Pennsylvania men’s swimming team from 2017 to 2020, and who at age 19 began hormone therapy to become a “transgender woman.”  Thomas then swam for Penn’s women’s team and in March 2022 won the women’s NCAA 500-yard freestyle collegiate championship, beating – among others – a 2020 women’s Olympic medalist. While some women swimmers expressed no objection to Thomas competing against them, others said it was unfair to allow it, sometimes noting their respect for the effort Thomas put into training.

In March 2024, fifteen collegiate women athletes, including some swimmers who had competed against Thomas in the 2022 championships, sued the NCAA and others, alleging they violated Title IX and the US Constitution by letting biological males, including Thomas (who is about six feet four inches tall, possessed full male genitalia, and had high testosterone levels), compete against them, deprive them of their rightful athletic recognition, and share locker rooms with them.[70]

As male-to-female “trans” athletes have become more common, stakeholders have reacted in different ways.  Some would forbid all such athletes to compete in women’s events; others demand that all such “trans” athletes be permitted to compete in any women’s event they choose.  Many responsible parties try to steer a middle course taking account of the level of competition, the nature of the particular sport, and any individual male-to-female athlete’s particular physical advantage.

The level of competition matters.  Non-elite youth teams focus on participation and on teaching rules and skills.  Many scholastic and club teams stress competition or feature opportunities to earn college admission or financial assistance.  College athletics now offer not only scholarships and glory, but also name-image-likeness revenue.  Elite amateur and professional competitions offer fame, huge salaries and commercial endorsement money.

So too, the sport matters.  For example, tennis, swimming, rowing, track and field events involve competition with little or no physical contact between opponents; size, strength and speed affect the competitive result, but are unlikely to affect player safety.  But boxing, wrestling, rugby, soccer, basketball and football are likely to involve collisions where size, strength and speed impact not only winning and losing, but also athlete safety.

Likewise, the individual “trans” athlete’s transition history matters.  It is scientifically well established that most males who have undergone puberty are bigger, stronger and faster than most women, and that the biggest, strongest and fastest men are bigger, stronger and faster than all women.  In fact, studies show that in one year thousands of men (including dozens to hundreds of teenage boys) outperformed the single best female record in each of eleven track and field events.[71]  A male-to-female “trans” athlete will have more or fewer of these advantages depending on how far into male puberty the athlete progressed before beginning to transition and how far, if at all, the athletic advantages associated with male puberty might have been reduced after transitioning.[72]

So more enlightened authorities are moving toward (or at least paying lip service to) a more nuanced and fact-based approach to “trans” athletes, both to offer them opportunity and to promote fairness and safety for all.  The NCAA, which oversees U.S. collegiate sports, supports “a sport-by-sport approach to transgender participation that preserves opportunity for transgender student-athletes while balancing fairness, inclusion and safety for all who compete.”[73]  International bodies governing swimming, athletics (track and field), and cycling have recently clarified or amended their policies on eligibility of “transgender women” to participate in their respective sporting events.  While the details differ, the policies share: (1) permission for male-to-female transgender athletes to compete in sanctioned events pursuant to eligibility criteria for separate men’s and women’s categories; and (2) exclusion from women’s events of those who have experienced some significant part of male puberty.[74]

NYS’s ERA would scrap such fact-based rules in favor of an absolute constitutional ban on dis-crimination based on sex including gender identity or gender expression.  Such a constitutional ban would override any conflicting NYS statute that mandates or permits distinctions in sports based on sex or gender.  It would force New York high schools and colleges to permit a 6′ 2” 200 pound “trans woman” who wants to compete with girls or women to do so, thus likely taking from some of them the chance to compete for playing time, winning, college admission or scholarships.  For contact sports, like field hockey or lacrosse (played with sticks and hard balls) it risks the safety of smaller females.

The NYS ERA, as a condition of state or municipal collaboration, would require international bodies in swimming, track and field, or cycling (including the International Olympic Committee) to admit “trans women” to their female competitions, and – when they refuse – to deprive NYS of the economic benefits of hosting such competitions.

Few states have absolute constitutional bans on sex discrimination, and none has such a ban on discrimination based on gender identity or gender expression, certainly not for sports.  The ERA would make New York an extreme outlier.

The United States and New York already have constitutional Equal Protection Clauses which explicitly ban the denial of equal protection of the laws.  The courts have said such clauses ban discrimination without a rational relation to a legitimate governmental interest.  The US and New York already have statutes which explicitly ban sex discrimination.  The US and New York already have regulations balancing opportunities for trans athletes with fairness and safety for all.

For NYS public high school sports teams, statute prohibits disqualification based on sex, except pursuant to regulations of the Education Commissioner; but does not expand the traditional definition of sex.[75]  NYS statute also prohibits discrimination or harassment of students based on a student’s actual or perceived sex, gender, gender identity or gender expression.[76]  NYS Education Department guidelines address the eligibility of students of any gender or sex to participate in Mixed Competition, and state that public schools may not permit students to be excluded from participating on a sports team on the basis of gender or sex; however, the guidelines do not specifically address any right of male-to-female trans athletes to participate on female sports teams.[77]  The New York State Public High School Athletic Association (NYSPHSAA), a non-profit, voluntary, educational service organization, refers its member schools to DASA and Education Department guidelines.  Although NYS governor Hochul’s administration seems to be moving toward an ideological policy regarding transgender athletes, there is no clear NYS policy yet regarding “trans female” athletes (that is, boys claiming to be girls) on high school girls’ teams.  So there is still some flexibility for schools (and for the NYS Education Department, if it chooses to do it) to implement policies balancing opportunities for transgender athletes with fairness and safety for all participants.

Society is already moving toward sensible regulation of “trans” athletes in sports.  The ERA’s extreme, absolutist, one-size-fits-all, ideological approach to the issues would deprive state, municipal, and other authorities of the ability to balance opportunity, fairness, and safety in athletics on a sport-by-sport, league-by-league, case-by-case, factual basis.  All athletes deserve better than the ERA.

 

Affirmative Action – Reverse Discrimination

Proposed ERA subsection B would provide that nothing in the ERA shall invalidate or prevent the adoption of any program or practice (implicitly including affirmative action programs based on characteristics listed in the ERA) if it is “designed to prevent or dismantle discrimination on the basis of a characteristic listed in this section.”  There is no explicit limit on such affirmative action programs.  NYS government would be allowed to discriminate against some majority or even minority groups in order to prevent or dismantle discrimination against another group.

Traditional civil rights laws forbid discrimination against individuals because they belong to certain groups.  This ERA clause would permit some “remedial” discrimination, both for and against individuals, because they belong to certain groups.  Thus, under the NYS ERA, government could – based on what groups it favors at any political moment – decide that discrimination based on a suspect classification is banned unless it isn’t.  This would be arbitrary tyranny, not equal protection of the law.

 

Conclusion

New York and federal laws already provide equal protection against irrational discrimination of all kinds.  Such laws also forbid, with reasonable exceptions, specific kinds of discrimination based on age, sex, sexual orientation, gender identity, gender expression, race, color, creed, religion, or disability.    New York only lightly regulates abortion.  The ERA is not needed to supplement these laws.

The ERA, though cloaked in reassuring idealistic words, instead would put an ideological thumb on the scales, tipping the balance of New York policy toward a revolutionary view where all ages are treated the same (regardless of immaturity or seniority), where reasonable biology-based sex distinctions are abandoned for fluid ideas of gender, and where state government chooses what discrimination it will endorse and what it will forbid.  ERA supporters cannot, and will not, say which of New York’s well-crafted policies will be the first, or the last, to fall to the one-size-fits-all ERA.

 

NOTES:
_________________________________________________________________________________________

[1]     As this essay neared completion, a NYS judge found the Legislature’s concurrent resolution to send the ERA to voters was adopted in violation of the procedures required to amend the constitution and so ordered the proposed amendment to be removed from the November 2024 ballot.  Byrnes v. Senate of the State of New York, Supreme Court, Livingston County, May 7, 2024, Slip Opinion 24136.  The NYS Attorney General has vowed to appeal.  It is now unknown whether or not the ERA will be on the 2024 ballot.

[2]     Before a proposed NYS constitutional amendment may be referred to the people, the legislature must first approve it during two consecutive sessions.  Introduction and first passage of the ERA occurred on a single day (July 1, 2022) near the end of session.  In the next session, second passage (January 24, 2023) occurred only twenty days after introduction (January 4, 2023).  On January 17, 2023, the Senate Judiciary Committee took up the ERA resolution (S.108-A) and, without debate, reported it favorably about one minute later; no witnesses testified for or against it.  On January23, 2023, the Senate Rules Committee took up S.108-A and, without debate, reported it favorably after only ten seconds (!); again, no witnesses were heard.  Assembly floor debate on January 24, 2023 lasted only 90 minutes.  On January 24, 2023, the full Senate took up S.108-A and within one minute call for a vote; only after the call did some Senators explain the affirmative votes they had already cast; there was no floor debate before that day’s roll call.  See the NYS Assembly and Senate web sites, including links to transcripts and video recordings of the floor proceedings.

[3]     See the transcripts or videos of the legislative debates.  See also Equal Rights Amendment Advances to New York Voters in November 2024, New York Civil Liberties Union (Jan 24, 2023) https://www.nyclu.org/press-release/equal-rights-amendment-advances-new-york-voters-november-2024, and Planned Parenthood of Greater New York Celebrates the Second Legislative Passage of the Equal Rights Amendment, Planned Parenthood of Greater New York  (Jan 25, 2023), https://www.plannedparenthood.org/planned-parenthood-greater-new-york/about/news/planned-parenthood-of-greater-new-york-celebrates-the-second-legislative-passage-of-the-equal-rights-amendment.

[4]     Proposed changes are in bold; additions are underlined; deletions are [bracketed].

[5]     U.S.  Const. amend. XIV, § 1: “No state shall … deny to any person within its jurisdiction the equal protection of the laws.”  N.Y. Const. art. I, § 11: “No person shall be denied the equal protection of the laws of this state or any subdivision thereof.”

[6]     See, e.g., United States v. Carolene Products Co., 304 U.S. 144 (1938) holding a Congressional ban on  interstate shipment of “filled milk” was rational and constitutional; United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973) finding no rational basis for Congress to ban households with unrelated members from receiving food stamps; Heller v. Doe, 509 U.S. 312 (1993), holding Kentucky’s different standards of proof in commitment proceedings for mental retardation and mental illness was rational and constitutional; and Board of Educ., Levittown Union Free School Dist. v. Nyquist, 57 N.Y.2d 27 (1982), holding NYS education funding laws had a rational basis and so met both state and federal Equal Protection Clause requirements.

[7]     See, Reynolds v. Sims, 377 U.S.533 (1967), invalidating Alabama’s legislative district plan.

[8]     See, Reed v. Reed, 404 U.S. 71 (1971) holding Idaho’s statutory preference for men over women as administrators of decedents’ estates violated the Equal Protection Clause; and Craig v. Boren, 429 U.S. 190 (1976) holding the Equal Protection Clause does not permit Oklahoma to set different minimum ages for men and women to buy liquor.

[9]     See, e.g., Matter of Esler v. Walters, 56 N.Y. 2d, 306, 314 (1982); People v. McCray, 57 N.Y. 2d 542, 550 (1982), cert denied 461 U.S. 961 (1983); Shattenkirk v. Finnerty, 97 A.D. 2d 51 (3d Dept., 1983), aff’d 62 N.Y. 2d 749 (1984); People v. Hernandez, 75 N.Y. 2d 350 (1990); and People v. Kern, 75 N.Y. 2d 638, 649 (1990)          .

[10]   See, Massachusetts Bd. of Retirement v. Murgia, 427 US 307 (1976) holding that the right of government employment was not fundamental, and uniformed state police officers over fifty did not constitute a suspect class, and so a mandatory age-based retirement law did not violate the federal Equal Protection Clause; Vance v. Bradley, 440 US 93 (1979) upholding a federal law providing a lower mandatory retirement age for Foreign Service workers than Civil Service workers; and Gregory v. Ashcroft, 501 US 452 (1991) upholding a state constitution’s mandatory retirement age for judges.  See also, Kozlowski v. State of New York, 62 A.D. 2d 617 (4th Dept., 1978) upholding a NYS mandatory retirement age for State Police troopers.

[11]   See, e.g., Califano v. Goldfarb, 430 U.S. 199 (1977) voiding Social Security Administration’s treatment of benefits paid to surviving spouses of deceased wage earners which differed by sex; Dothard v. Rawlinson, 433 U.S. 321 (1977) holding Alabama’s minimum height and weight requirements for prison guards had a discriminatory impact on women and bore no rational relation to the strength needed for the job; and        People v. Liberta, 64 N.Y.2d 152 (1984), reading the marital and gender exceptions out of the statutes prohibiting forcible rape and sodomy.

[12]   29 U.S.C. §§ 621, et seq.

[13]   42 U.S.C. §§ 6101, et seq.

[14]   Public Law 105-220 § 188, codified at 29 U.S.C § 2938.

[15]   20 U.S.C. §§ 1681, et seq.; 29 U.S.C. §§ 3101, et seq.; and 42 U.S.C. §§ 2000e, et seq.

[16]   N.Y. EXEC. LAW § 296(1), (2-a), (3-a), (4), (5) and § 296-A(1)(a), (b), (c), (e).

[17]   N.Y. EXEC. LAW § 296(1), (2-a), (3-a), (4), (5) and § 296-A(1)(a), (b), (c), (e).

[18]   N.Y. EXEC. LAW § 296(2), (3-b), (9).

[19]   The NYS constitution lacks an explicit Supremacy Clause like the one in the US constitution at Article VI.  Nonetheless, NYS’s highest court has said: “The legislature of this state possess [sic] the whole legislative power of the people, except insofar as they are limited by the constitution.”  Bank of Chenango v. Brown, 26 N.Y. 467 (1863).  See also, People ex rel. McLean v. Flagg, 46 N.Y. 401, 404 (1871).  NYS courts have often voided or modified state laws which conflict with the state constitution.  See, for example, People v. Liberta, 64 N.Y.2d 152 (1984) voiding marital and gender exceptions to forcible rape laws; Brown v. State of New York, 89 N.Y.2d 172 (1996) expanding NYS Court of Claims jurisdiction to include state constitutional torts; Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307 (“CFE I”), and 100 N.Y.2d 893 (2003) (“CFE II”) holding, respectively, that plaintiffs had stated and proven a claim that legislative funding for education had violated the state constitution Education Article (Art. XI); and Harkenrider v. Hochul, 38 N.Y.3d 494 (2022) voiding the legislature’s congressional and state senate district maps.

[20]   See cases cited at note 10 above.

[21]   See, Rostker v. Goldberg, 453 U.S. 57 (1981) finding a rational basis for Congress to authorize registration of men, but not women, for a possible military draft.

[22]   See, People v. Liberta, 64 N.Y.2d 152 (1984).

[23]   N.Y. PENAL LAW § 130.35(3) and (4).  For these and the other crimes cited in this paragraph, where current law prohibits “sexual intercourse,” amendments effective September 1, 2024 will redefine the prohibited activity as “vaginal sexual contact,” “oral sexual contact,” or “anal sexual contact.”  However, where the age of the offender or the victim is an element of the crime, those ages will remain unchanged by the September 2024 amendments.

[24]   N.Y. PENAL LAW § 130.25(2), § 130.30(1), § 130.35(3) and (4), § 130.75(1), § 130.80(1), and § 130.96 A II.

[25]   N.Y. FAM. CT. ACT § 301.2 (1), and Article 3.

[26]   N.Y. CRIM. PROC. LAW § 1.20(42), and Articles 722 and 725.

[27]   N.Y. CRIM. PROC. LAW § 1.20(44), and Article 722.

[28]   N.Y. CRIM. PROC. LAW § 720.10(1), et seq., and Articles 720 and 722.  See also, N.Y. PENAL LAW § 60.02.

[29]   N.Y. Const., Art. II and IV.

[30]   N.Y. VEH. & TRAF. LAW §§ 501-509.

[31]   N.Y. LAB. LAW §§ 130-145.

[32]   N.Y. ALCO. BEV. CONT. LAW § 65-c.

[33]   N.Y. CANBS. LAW § 3(6).

[34]   N.Y. EXEC. LAW §§ 290, et seq.

[35]   N.Y. EXEC. LAW § 296(1) and (3-a).

[36]   N.Y. EXEC. LAW § 296(3-a).

[37]   N.Y. EXEC. LAW § 296(5).

[38]   N.Y. EXEC. LAW § 296(17).

[39]   N.Y. EXEC. LAW § 296-a(3-a) and (12).

[40]   N.Y. EXEC. LAW § 296(2).

[41]   N.Y. EXEC. LAW § 296(2-a).

[42]   N.Y. EXEC. LAW § 296(4).

[43]   N.Y. EXEC. LAW § 296(5).

[44]   See note 3 above.

[45]   See Planned Parenthood of Greater New York Celebrates the Second Legislative Passage of the Equal Rights Amendment, Planned Parenthood of Greater New York  (Jan 25, 2023), https://www.plannedparenthood.org/planned-parenthood-greater-new-york/about/news/planned-parenthood-of-greater-new-york-celebrates-the-second-legislative-passage-of-the-equal-rights-amendment.

[46]   Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).

[47]   See Estimated number of abortions provided in the formal US health care system in January-December 2023 New York, Guttmacher Institute, guttmacher.org/monthly-abortion-provision-study?gad_source=.

[48]   See note 19 above.

[49]   N.Y. CIV. RIGHTS Law § 79-i.

[50]   Sex is a dimorphic, innate trait defined in relation to an organism’s biological role in reproduction; in humans, primary sex determination occurs at fertilization and is directed by a complement of sex determining genes on the X and Y chromosomes; see Sex is a Biological Trait of Medical Significance, American College of Pediatricians (March 2021) acpeds.org/position-statement/sex-is-a-biological-trait-of-medical-significance.  Biological sex is often confused with gender; the two sexes are differentiated as females, who have ovaries and produce eggs, and males, who have testes and produce sperm; in mammals, females typically have XX chromosomes and males typically have XY chromosomes; all sex differences in the zygote, or fertilized egg, stem from harboring two different sex chromosomes; see Biological differences between females, males need to be considered in scientific studies, The Endocrine Society (Mar 11, 2021) endocrine.org/news-and-advocacy/news-room/2021/biological-differences-between-females-males-need-to-be-considered-in-scientific-studies.  Research has shown that biological differences between men and women (differences due to sex chromosome or sex hormones) may contribute to variations seen in the safety and efficacy of drugs, biologics, and medical devices; see Sex as a Biological Variable, U.S. Food and Drug Administration, fda-gov/consumers/about-owh/sex-biological-variable#.  Sex refers especially to biological traits whereas gender refers especially to social or cultural traits; APA Dictionary of Psychology, American Psychological Association, dictionary.apa.org/sex.  Humans and most other mammals have two sex chromosomes, X and Y, that in combination determine the sex of an individual; females have two X chromosomes in their cells, while males have one X and one Y; see Sex Chromosome, National Institutes of Health (Apr 29, 2024) genome.gov/genetics-glossary/Sex-Chromosome.

[51]   See, Meyer v. Nebraska, 262 U.S. 390 (1923) (holding that a state may not forbid and penalize the teaching of young children in German); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (holding that Oregon may not compel parents to send their children to public schools); and Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that a state may not compel Amish parents, over their religious objection, to send their children to public schools).

[52]   See Matter of Marie B., 62 N.Y.2d 352 (1984)

[53]   See Parham v. J.R., 442 U.S. 584 (1979) holding that parents’ rights to commit their children to Georgia state mental hospitals may be overridden upon the state’s finding of facts to justify either the refusal to admit the child or the discharge of the child after admission.

[54]   NYS has no statutory definition of emancipation, but NYS courts have variously considered it to be (a) renunciation of legal duties by the parents and surrender of parental rights to the child; (b) economic independence from the parents through employment of the child; or (c) withdrawal of the child from parental supervision and control.  See, Alfonso v. Fernandez, 195 A.D.2d 46 (2nd Dept., 1993) and the cases cited therein.  See also, N.Y. PUB HLTH LAW §§ 2305(2) and 2504, codifying some, but not all, of the judge-made common law exceptions to the general incapacity of minors to make their own health care decisions.

[55]   See, N.Y. PUB HLTH LAW §§ 2305(2) and 2504.

[56]   See 42 C.F.R. § 50.50.203, 18 N.Y.C.R.R. § 505.13(3)(1)(ii), and N.Y.C. Code § 17-402(2), et seq.

[57]   9 CRR-NY § 466.13(b)(1).

[58]   9 CRR-NY § 466.13(c).

[59]   See, e.g., Equal Rights Amendment Advances to New York Voters in November 2024, NYCLU (Jan 24, 2023) https://www.nyclu.org/press-release/equal-rights-amendment-advances-new-york-voters.november-2024, stating at note 6: “Historically women have been the target of pregnancy discrimination.  The NYCLU recognizes that individuals who are not women face discrimination because of their capacity to become pregnant and pregnancy, including, but not limited to, non-binary individuals and transgender men.”

[60]   Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, (2012).

[61]   See, A.B. v. C.D., Court of Appeal for British Columbia (Jan 10, 2020); also Canadian man jailed for calling his female child as “daughter,” Opindia (March 18, 2021) https://www.opindia.com/2021/03/canadian-man-jailed-for-calling-his-biologically-female-child-as-daughter; also Douglas Quan, Court hears transgender teen’s anguish – and a father’s 11th hour regrets – over public campaign against treatment, Toronto Star, (Apr 14, 2021) https://www.thestar.com/news/canada/court-hears-transgender-teen-s-anguish-and-a-father-s-11th-hour-regrets-over-public/article_27d5ab9c-b521-5ee0-8d66-0921c430df8b.html.  It appears that a series of trial court judges described the father’s use of pronouns unwanted by the child as “akin to family violence,” enjoined the father from addressing the child by the child’s birth name, and enjoined him from speaking publicly.  By the time an appeals court modified the orders, narrowed the grounds for finding contempt, and permitted jailing for contempt, the father had already served some time.  Thus, there was a basis for differing views about why the father went to jail.

[62]   Blais v. Hunter, 493 F. Supp. 3d 984 (E.D. Wash. 2020).

[63]   M.C. v. Indiana Department of Child Services, (March 18, 2024) cert. Denied, scotusblog.com/case-files/cases/m-c-v-indiana-department-of-child-services/.  See also, M.C. And J.C. v. Indiana Department of Child Services,  becketlaw.org/case/m-c-and-j-c-v-indiana-department-of-child-services.

[64]   Burke v. Walsh, (U.S.D.C. Mass.) complaint filed August 8, 2023.  See becketlaw.org/case/burke-v-walsh/.

[65]   See, e.g., Equal Rights Amendment Advances to New York Voters in November 2024, New York Civil Liberties Union (Jan 24, 2023) https://www.nyclu.org/press-release/equal-rights-amendment-advances-new-york-voters-november-2024,, at page 4.

[66]   See Obergefell v. Hodges, 576 US 644,  (2015), J. Kennedy, for the court.

[67]   See Obergefell v. Hodges, 576 US 644, (2015), J. Thomas, dissenting.

[68]   See Masterpiece Cakeshop v. Colorado Civil Rights Comm’n., 584 US 617 (2018).

[69]   See 303 Creative LLC v. Elenis, 600 US 570 (June 30, 2023).

[70]   See, EXCLUSIVE: Female Athletes Sue NCAA Over Transgender Competitors in Sports, The Free Press (Mar 14, 2024) thefp.com/p/exclusive-female-athletes-sue-ncaa-transwomen; and Riley Gaines, other female athletes, sue NCAA for allowing transgender competitors, National Catholic Register (Mar 15, 2024) ncregister.com/cna/riley-gaines-other-female-athletes-sue-ncaa-for-allowing-transgender-competitors.  See also, Class Action Complaint in Gaines, et al. v. National Collegiate Athletic Association, et al. (Mar 14, 2024) pacermonitor.com/public/case/52738088/Gaines_et_al_v_National_Collegiate_Athletic_Association_et_al and swimswam.com/wp-content/uploads/2024/03/Complaint-re-2022-Championships-FINAL-pdf.

[71]   Doriane Coleman and Wickliffe Shreve, Comparing Athletic Performances: The Best Elite Women to Boys and Men, Duke Law, law.duke.edu/sports/sex-sport/comparative-athletic-performance (last visited Apr 18, 2024).

  [72]At least one notable male-to-female trans person recognizes these athletic facts of life.  The 1976 Olympic men’s decathlon gold medalist, then named Bruce Jenner, fathered six children, but has since become Caitlyn Jenner and now identifies as a woman.  Jenner claims sympathy for LGBTQ people and understands their struggles, but has argued that allowing transgender people to compete with women would undermine the gains female athletes achieved under Title IX.  See various media coverage of a March 18, 2024 press conference, e.g. Philip Marcelo, Former Olympian Caitlyn Jenner backs New York county’s ban on transgender female athletes, Associated Press (March 18, 2024) https://apnews.com/article/transgender-athletes-ban-new-york-caitlyn-jenner-93fb6b119561ba0e306d67ec5a6160d, and Natalie Kainz, Caitlyn Jenner backs N.Y. County’s ban on trans women competing on women’s sports teams, NBC News (Mar19, 2024) https://www.nbcnews.com/nbc-out/out-news/caitlyn-jenner-backs-ny-countys-ban-trans-women-competing-womens-sport-rcna143896.

[73]   Board of Governors updates transgender participation policy, National Collegiate Athletic Association (Jan 19, 2022) https://www.ncaa.org/news/2022/1/19/media-center-board-of-governors-updates-transgender-participation-policy-aspx.

[74]   See Policy on Eligibility for the Men’s and Women’s Competition Categories, World Aquatics (f/k/a FINA) (June 19, 2022) resources.fina.org/fina/document/2022/06/19/525de003-51f4-47d3-8d5a-716dac5f77c7/FINA-INCLUSION-POLICY-AND-APPENDICES-FINAL-PDF; World Athletic Council decides on Russia, Belarus and female eligibility, World Athletics council (Mar 23, 2023) worldathletics.org/news/press-releases/council-meeting-march-2023-russia-belarus-female-eligibility; and The UCI adapts its rules on the participation of transgender athletes in international competitions, Union Cycliste Internationale (July 14, 2023)

[75]   See N.Y. EDUC. LAW § 3201-a.

[76]   See NYS Dignity for All Students Act of 2010 (DASA), codified at NYS Education Law, Article 2, §§ 10, et seq.

[77]   See “Guidance to School Districts for Creating a Safe and Supportive School Environment for Transgender and Gender Nonconforming Students,” NYS Education Department, (July 2015) https://www.p12.nysed.gov/dignityact/documents/Transg_GNCGuidanceFINAL.pdf; and “Updated Information Regarding Mixed Competition in Athletics,” NYS Education Department, (November 30, 2022) https://www.nysed.gov/sites/default/files/programs/curriculum-instruction/information-regarding-mixed-competition_november-2022.pdf.

 

________________________________________

[Donald Berens is a retired attorney and former New York State government lawyer.  Tate A. Thielfoldt provided valuable research assistance.  However, Berens takes full responsibility for the text; he does not speak for his former employers or their successors.]