Possible Legal Impacts of the So-Called Equal Rights Amendment to the

New York State Constitution

Ballot Popular Vote Scheduled, November 5, 2024

The proposed Equal Rights Amendment (ERA) or as we call it, The Parent Replacement Act, to the New York
State Constitution1 provides fundamental rights2 to children3(and adults) regarding sex, including sexual
orientation, gender identity, and gender expression. The amendment provides Courts with the power to strike
down laws that interfere with a child's sex, including sexual orientation, gender identity and gender expression.
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1
THE PROPOSED EQUALITY AMENDMENT [ SCHEDULED FOR A STATE-WIDE BALLOT VOTE ON NOVEMBER 5, 2024
Section 1. Resolved … , That section 11 of article 1 of the constitution be amended to read as follows:

§ 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.

The text in capital letters is new; the text in brackets [ ] is old law and will be omitted.

2
The[ ERA] expands constitutional legal protections to categories of people beyond those previously listed in the Equal Protection Clause of the
New York Constitution.” The new protected categories include sex, including sexual orientation, gender identity, and gender expression. “Any
rights afforded by the [ERA] will be considered fundamental rights, and any infringement of those rights will be subject to a higher level of
scrutiny. See, e.g., Leebaert v. Harrington, 332 F.3d 134, 140 (2d Cir. 2003) (observing that “[w]here the right infringed is fundamental, strict
scrutiny is applied to the challenged governmental regulation”).

3
The proposed amendment provides fundamental rights to “persons,” a word not explicitly defined in the text of the amendment, but defined
elsewhere in New York law. The Executive and Civil Rights law defines “person” to include “one or more individuals, partnerships, associations,
corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.” N.Y. Exec. Law § 292 (McKinney).Generally, under N.Y. Penal
Law “person” means “a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a
government or a governmental instrumentality.” N.Y. Penal Law § 10.00 (McKinney). Cases interpreting this language have held that the definition
of person contemplates a “living” human being, as opposed to a dead one. People v. Taylor, 158 A.D.3d 1095, 1103, 72 N.Y.S.3d 256, 263 (2018).
N.Y.’s Penal code contains a definition of “person” for purposes of who may be a victim of homicide- as “a human being who has been born and is
alive.” N.Y. Penal Law § 125.05 (McKinney). “The language requiring a person to be “born and alive” is the same for manslaughter and vehicular
homicide under N.Y. Penal Law.” Id. Like adults, children, beginning at birth, are “persons” under the proposed amendment, according to New
York State statute and case law.
The amendment provides Courts with the authority to uphold policies that allow children to engage in
transgender medical therapies and surgeries without parental notice or consent, wait periods or
gender-affirming informed consent.

New York’s ERA Forces A Radical Form Of Gender Ideology And Guts Parental
Rights As We Know Them

If approved by a majority of NYS voters, the proposed ERA would impose a radical form of gender
ideology, and potentially usurp the will of the people for future generations. It provides Courts with the
authority to override democratically enacted laws aimed at protecting children and parents from government
overreach regarding a child’s sex, including sexual orientation, gender identity and gender expression. The
proposed amendment threatens to prevent freely elected legislators from enacting enforceable and
reasonable safeguards for children regarding sex expression, de facto.

Gutting Parental Rights

NYS’s proposed ERA empowers Courts to invalidate policies that require parental notice or parental
consent for children to engage in invasive and non-invasive gender-affirming medical interventions,
including:

● puberty blocking treatment,

● masculinizing and feminizing hormone replacement therapy,4 and
● sex and/or gender reassignment and gender confirmation surgeries, such as
○ feminizing vaginoplasty,
○ orchiectomy,
○ hysterectomy,
○ masculinizing phalloplasty / scrotoplasty/metoidioplasty,
○ masculinizing chest surgery ("top" surgery),
○ facial feminization and masculinization procedures,
○ reduction thyrochondroplasty (tracheal cartilage shave),
○ prosthetics, and
○ vocal cord surgery.5

___________________
4
Overview of gender-affirming treatments and procedures (2016) https://transcare.ucsf.edu/guidelines/overview, Gender Affirmation
Nonsurgical Services (2023)
https://www.hopkinsmedicine.org/health/wellness-and-prevention/gender-affirmation-nonsurgical-services,
5
Gender Affirmation Surgeries (2023)
https://www.hopkinsmedicine.org/health/wellness-and-prevention/gender-affirmation-surgeries. See,
https://wexnermedical.osu.edu/gender-affirming-care.
NYS’s ERA violates the fundamental rights of parents to “direct the care, custody and
control of their children,” including their right to notice and consent regarding the
medical treatment of their children, under the U.S. Constitution.6

NYS’s ERA violates the rights of parents to notice and consent regarding the medical treatment of their
children, under NYS law.7

Parents Have The Right To Raise Their Own Children

Not Schools Or Government

In apparent anticipation of the passage of the ERA by a popular ballot vote in November, 2024 ( considering
the NYS Legislature passed the ERA in 2022 and in 2023) the NYS Department of Education (NYSED)
published a “legal update and best practice” document in June, 2023, directing how schools should serve
“transgender and gender expansive” (TGE) students.8 The NYSED TGE document “provides for withholding
… information [from] parents regarding a student’s desire to transition.”

According to the NYSED TGE document: “The student is in charge of their gender transition and the
school’s role is to provide support.” “Some TGE students have not talked to their families about their
gender identity … and may begin their transition at school without parent/guardian knowledge.”

The document states: “Only the student knows whether it is safe to share their identity with caregivers, and
schools should be mindful that some TGE students do not want or cannot have their parents/guardians
know about their transgender status.” “ If a student has formally requested to transition at school, the school
administrator or another trusted adult, preferably trained in supporting LGBTQ and Gender Expansive
students, can meet with the student and determine the steps the student is comfortable taking.”

__________________

6
Parents have the fundamental right to direct the care and upbringing of their children, under the Due Process Clause of the Fourteenth
Amendment of the U.S. Constitution. Nearly one hundred years ago, the U.S. Supreme Court acknowledged that “the child is not the mere
creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for
additional obligations.” Pierce v. Society of Sisters, 268 U.S. 510 (1925). Thereafter, in Stanley v. Illinois, 405 U.S. 645 (1972), the U.S.
Supreme Court affirmed the fundamental rights of parents “in the companionship, care, custody, and management” of their children. Id. at 651.
That same year, in Wisconsin v. Yoder, 406 U.S. 205 (1972), the U.S. Supreme Court declared that “[t]his primary role of the parents in the
upbringing of their children is now established beyond debate as an enduring American tradition.” Id. at 232. More recently, … the U.S.
Supreme Court declared in Washington v. Glucksberg, 521 U.S. 702 (1997), that the Constitution, and specifically the Due Process Clause of
the Fourteenth Amendment, protects the fundamental right of parents to direct the care, upbringing, and education of their children. Id. at 720.
And in Troxel v. Granville, 530 U.S. 57 (2000), 5 this Court again unequivocally affirmed the fundamental right of parents to direct the care,
custody, and control of their children. Petition for Writ of Certiorari to the Supreme Court of North Carolina Routten v. Routten, (2020), at
https://www.supremecourt.gov/DocketPDF/20/20-618/162853/20201207145434898_20-616%20Amicus%20Brief%20The%20J
ustice%20Foundation%20cert%20stage.pdf .
7
Under New York State law, “a minor child is not generally able to consent to “medical, dental, health or hospital services.” A Child’s Right to
Consent to Medical Treatment, NYSBA Health Law Journal | Winter 2020 | Vol. 25 | No. 1,
https://archive.nysba.org/WorkArea/DownloadAsset.aspx?id=99254. See also,
https://agurgentcare.com/can-a-minor-get-medical-treatment-in-new-york/.
8
NYSED, Creating a Safe, Supportive, and Affirming School Environment for Transgender and Gender Expansive Students: 2023 Legal
Update and Best Practice, at
https://www.nysed.gov/sites/default/files/programs/student-support-services/creating-a-safe-supportive-and-affirming-school-environment-for-t
ransgender-and-gender-expansive-students.pdf
The school is also directed to hold a meeting with TGE school support staff and TGE students to develop a
Gender Support Plan (GSP), “whether the parents/guardians attend or not.” Crucial aspects of the GSP include:
discussing (1) the “school’s role in supporting the student’s transition,” (2) available “resources,” and “the
timing of the transition.”

Lastly, the NYSED TGE makes clear that: A “paramount consideration” for TGE students is “assuring that
the student’s gender identity is affirmed and that their privacy and confidentiality are safely maintained.”

Children Are Vulnerable

In an Amicus Brief submitted to the U.S. Supreme Court on Roper vs. Simmons, 543 U.S. 551 (2005), a death
penalty case involving a minor, the American Psychological Association argued against its applicability to
minors and won. Their reasoning is similar to why minors cannot ‘consent’ to participating in sex trafficking:
During adolescence “the brain has not reached adult maturity, particularly in the frontal lobes, which control
executive functions of the brain related to decision-making.”

Gender-Affirming Informed Consent

The ERA grants Courts the ability to nullify and override state laws that require gender-affirming practitioners
to provide children or adult patients with comprehensive information regarding potential negative impacts of
gender-affirming medical interventions.

Transgender Wait Periods

The ERA gives Courts the capacity to void policies that require children or adults to undergo any ‘wait period’
between the appointment to commence and the commencement of transgender medical interventions.

Age

While there is broad public support for banning many forms of discrimination based on older age, there may
be support for other forms of beneficial age discrimination, and there ought to be concerns about letting the
NYCLU and judges upend NYS laws and parental decisions balancing the rights and duties of and toward
minor children especially those of a younger age.

There is no specific ban of age discrimination in the federal or NYS constitution, however, some such
discrimination (without a rational relation to a legitimate state interest) is banned by the Equal Protection
clauses of each. Any specific bans are statutory or regulatory. For example, the federal Age Discrimination
in Employment Act protects applicants and employees age 40 and older.9

NYS Human Rights Law exempts from its list of unlawful discriminatory practices (UDPs) many distinctions
applicable to persons under ages 18 or 21, or over ages 55, 62, or 70. Would a one-size-fits-all, blanket
constitutional ban of age discrimination call into question NYS HRL's fine-tuned policies regarding age in
housing, public accommodation, or employment? End senior living communities when a younger applicant
seeks admission? End State Liquor Authority age restrictions? End special cases of compulsory retirement?
Senior discounts?
Would a blanket constitutional ban of age discrimination call into question NYS's statutory minimum age
requirements to vote at age 18, to purchase, possess or consume alcohol at age 21, or to10,11 consume
non-medical marijuana at age 21? Would it undermine NYS's age-based restrictions of 12 driving privileges?
Regulation of work conditions or permits for children under the age of 18?13,14

The rights of minors to make their own medical decisions without the knowledge or permission of their parents
or guardians is too complex to discuss fully here. Those under age 18 who are married, pregnant, parents,
incarcerated, in the military, or otherwise “emancipated” are legally permitted – if 15 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.

In notable exceptions, federal, NYS and NYC regulations restrict the sterilization of those under age 21. This
may bear on some so-called transgender interventions for minors.16

As far as we are aware, 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.” 17 New York State rules provide
that discrimination based on gender identity or the status of being transgender constitutes sex discrimination.
Nonetheless, no NYS law now permits unemancipated 18 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 statutory, regulatory, and judge-made laws concerning consent to
transgender medical care of un-emancipated NYS minors might be, would a blanket NYS constitutional ban
of age discrimination tip decision-making away from loving parents and toward distressed and vulnerable
teens counseled by ideologues?
___________________

9
See 42 U.S.C. $631(a). NYC may protect employees younger than 40.
10
See NYS Election Law $5-102(1).
11
See NYS Alcoholic Beverage Control Law $65-c.
12
See NYS Cannabis Law $3(6).
13
See NYS Vehicle & Traffic Law $$501-509.
14
See NYS Labor Law $$130-145.
15
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.
16
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.
17
See NY Human Rights Rules $466.13(b)(1).
18
See NY Human Rights Rules $466.13(c).
 Socio-Economic, Socio-Psychological And Other Impacts of New York’s ERA

New York is a cultural and legislative ‘leader’ in the United States. What happens in New York impacts the rest
of the nation, and even the world. The lack of credible research regarding the effects of ‘gender-affirming’
procedures on minors,19 and the benefits of parental notice and consent on the health status of minors is
of the utmost concern.

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19
What Medical Treatments Do Transgender Youth Get, stating “Longer term studies on treatment outcomes are underway,” at
https://www.pbs.org/newshour/health/what-medical-treatments-do-transgender-youth-get, See also, Medical Group Backs Youth Gender Treatments,
but Calls for Research Review, stating “The treatments are relatively new, and few studies have tracked their long-term effects,” at
https://www.nytimes.com/2023/08/03/health/aap-gender-affirming-care-evidence-review.html.