In January 2023, the New York legislature for a second consecutive session passed a measure proposing the Equal Rights Amendment (ERA). The proposed amendment to the state constitution now heads to the November 2024 ballot and, if ratified, would ban discrimination based on a person’s ethnicity, national origin, age, disability, and sex—including, according to the bill’s summary, discrimination based on “sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, reproductive healthcare and reproductive autonomy.”

The ERA’s proponents often tout (and its opponents often warn) that the amendment could strengthen abortion access, which they claim is a pressing need after the overturning of Roe v. Wade. But New York State already has permissive abortion policies, and they are not under existential threat. While many New Yorkers may appreciate the ERA’s abortion-policy implications, fewer recognize the amendment’s potential to advance gender ideology, undermine parental rights, and harm children. 

The proposed amendment would grant “persons”—arguably including minors—protection from discrimination based, as noted, on “sex.” While the amendment itself does not define “person,” state statute and case law define “persons” to include both children and adults. For example, New York’s relevant executive law defines “person” as “one or more individuals,” while state penal law defines a “person” simply as “a human being.” If courts similarly interpreted the amendment to apply its antidiscrimination provisions to minors, the ERA could provide a state constitutional basis for upholding controversial and broadly unpopular policies related to the medical and social transitioning of gender-dysphoric youth, undermining parents’ rights to direct the care, custody, and control of their children.

The ERA, if passed, that is, could allow New York courts to claim that barring children from accessing “gender affirmative care” (GAC) is discriminatory and therefore unconstitutional. While New York law currently allows emancipated minors to pursue medical care without parental consent, the state does not give unemancipated minors the legal right to make non-emergency medical decisions outside of exceptional circumstances. However, the state’s regulatory agencies already prohibit discrimination based on “gender identity” and allow trans-identified minors in New York to receive confidential mental-health services for the treatment of gender dysphoria, and possibly additional services. The ERA could give courts a constitutional basis to vindicate children’s supposed rights to access other, more invasive treatments—such as puberty blockers or even genital surgery—without parental knowledge.

Troublingly, the ERA could also give courts a legal basis to strike down state laws designed to safeguard minors from experimental procedures and government overreach. While a growing body of research challenges the clinical benefits of GAC—and even the World Health Organization recently conceded that the evidence base for minors was “limited” and “variable”—the ERA’s ban on “gender identity”-based discrimination would make it harder for objectors to challenge policies that allow minors to access GAC without parental consent, such as A9604, which enables homeless or “runaway” minors to consent to medical procedures without parental consent if they are receiving approved crisis or support services. The amendment would also make it tough to sustain a legal case against A6761—a bill, still in committee assembly, that would functionally expand these protections to all minors.

Significantly, the ERA’s passage would also reinforce New York educational policy, which embraces contestable assumptions about socially transitioning minors and parents’ role in the transition process. In 2023, New York State released its “Best Practices” for “Creating a Safe, Supportive, and Affirming School Environment for Transgender and Gender Expansive Students.” This policy document takes its cues from the Biden administration’s “notice of interpretation“ from June of 2021, declaring that discrimination based on sex includes discrimination based on gender identity. The basis for this notice of interpretation stems from the highly controversial application of Bostock v. Clayton County—a Title VII case involving employment discrimination—to Title IX and education policy.

This guidance commits the state Department of Education to “assur[ing] that a student’s gender identity is affirmed and that [his or her] privacy and confidentiality are safely maintained,” which crucially includes privacy from parents. “Students are not required to obtain parental/guardian consent or a court-ordered name and/or gender change before being addressed by their affirmed name and pronoun,” according to the policy, meaning that the DOE’s default is to transition children at school socially, without parental approval. This is irresponsible on scientific grounds and fundamentally usurps parents’ right to direct the care and upbringing of their children, with potentially meaningful and long-lasting consequences. If the ERA were to pass, and gender-identity protections were formalized in the state constitution, parents would be hard-pressed to challenge this and other misguided policies.

Most New Yorkers likely do not understand the ERA’s potential implications, particularly on matters of gender identity. The amendment is deceptively framed as a benign provision to “protect all New Yorkers,” but its sponsors clearly did not have New York parents in mind. The amendment would enshrine protections for gender identity and expression at the state constitutional level, entrenching misguided policies. The bill’s backers want to hide these potential consequences from public view. But if New Yorkers are going to vote away their parental rights, they ought to know what they’re voting for.

Photo by Ira L. Black/Corbis via Getty Images


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