New York State Senate Passes Equal Rights Amendment to State Constitution


On July 1, 2022, the New York State Senate passed S.51002, more commonly known as the Equal Rights Amendment to the New York State Constitution.  Most notably, the Equal Rights Amendment, if passed, will enshrine citizens’ right to seek abortions and access contraception within the State Constitution itself.  Unsurprisingly, the renewed effort to pass the Equal Rights Amendment has been motivated by the U.S. Supreme Court’s devastating (and, frankly, shameful) decision in Dobbs v. Jackson Women’s Health Organization, which reversed the nearly 40-year precedent set by Roe v. Wade and subsequently refined by Planned Parenthood of Southeastern Pennsylvania v. Casey.

This crucial element of the Equal Rights Amendment places New York State at the forefront of legal efforts to protect reproductive rights—at a time when perhaps no domestic issue is of greater importance.
  
But the amendment’s reach is far broader.  In addition to shoring up citizens’ right to make their own reproductive health decisions, it prohibits the government from discriminating against anyone based on a list of qualifications including race, ethnicity, national origin, disability, or sex—specifically noting sexual orientation, gender identity and expression, and pregnancy on the list of protected characteristics.  While New York State (and New York City) already provide robust protections against discrimination on the basis of all characteristics covered by the Equal Rights Amendment, codifying the right to live free of discrimination in the State Constitution ensures that this right remains protected under New York State law, regardless of any future decisions by the U.S. Supreme Court.

Unfortunately, a provision that would have lowered the standard for discrimination to include unintentional or so-called “disparate impact” discrimination was removed from the legislation to the disappointment of advocates.  Thankfully, however, a clause in the Equal Rights Amendment leaves the door open for future changes: “Nothing in this section shall invalidate or precent the adoption of any law, regulation, program, or practice that is designed to prevent or dismantle discrimination.”  It also bears noting that, again, statutes in New York State and New York City already prohibit disparate impact discrimination.

While the passage of the Equal Rights Amendment through the State Senate is no doubt cause for celebration, amending the State Constitution is a years-long process in New York.  Specifically, the Equal Rights Amendment must now pass the State Assembly, and then be approved by voters via a referendum.  By passing the Equal Rights Amendment through the State Senate this year, champions of the legislation in Albany hope it can be swiftly approved by the New York State Assembly and be put before voters in 2024, when high turnout is expected in a presidential election year, thereby increasing the odds of its passage.
 

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Alex Hartzband's practice is focused on employment litigation. Alex is a Partner in the firm's New York office.

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