Constitutional amendment would affirm protections for trans athletes

New York voters this fall will decide whether to pass Proposition 1, also known as the Equal Rights Amendment. Supporters say the constitutional amendment would strengthen abortion rights and strengthen anti-discrimination laws for women and the LGBTQ+ community. Opponents include the Coalition to Protect Kids NY, which warns the amendment would override parental rights and harm girls’ sports.  

The group’s website claims: "The ERA could also mandate that schools allow biological males to compete in girls' sports." 

Would Prop 1 do this? 

The amendment adds language, bolded below, to the constitution that would increase protections against discrimination:

"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 [strike: 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.

Like other states around the country, New York has been in the news for transgender athlete bans.

On Long Island, Nassau County lawmakers enacted a prohibition against trans athletes from playing on teams that align with their gender identity at county-owned sports facilities. This ban is being challenged in court. The county law states that athletes must play on teams that match their sex assigned at birth, or play on coed teams, even if they have a court order stating their gender identity. Before this law was passed, a state Supreme Court justice struck down an identical executive order from the county executive, deeming  that County Executive Bruce Blakeman had exceeded his authority.  

New York State Attorney General Letitia James sued the county, claiming the ban violates the state’s human rights and civil rights laws. Courts have found that these laws protect people who are transgender from discrimination, James said.   

New York state already offers protections allowing high school athletes to choose which team aligns with their gender identity, experts told us.

The state Legislature amended the Human Rights Law in 2019 to include gender identity as a protected class, through the Gender Expression Non-Discrimination Act, or GENDA. The law prohibits discrimination on the basis of gender identity in public accommodations, which include public buildings. 

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The governing body for high school sports in New York, the New York State Public High School Athletic Association, has recognized transgender athletes since at least 2015. The group’s guidelines call for the inclusion of trans athletes on teams that align with their gender identity and outline a process for determining eligibility.   

State education law states: "No person shall be disqualified from state public and high school athletic teams, by reason of that person's sex, except pursuant to regulations promulgated by the state commissioner of education."

Though protections for trans athletes to compete on teams that align with their gender identity already exist in the law, Prop 1 could strengthen those protections, because they would be part of the state constitution, said Elana Redfield, federal policy director at the Williams Institute at the University of California, Los Angeles. "It’s more robust," Redfield said. 

Laws can be amended during legislative sessions, but constitutional amendments go through a more rigorous process. They are passed twice in the state Legislature and must be approved by the majority of  voters in a referendum. 

A constitutional amendment would make it more difficult for opponents of these protections to reverse the law, said Jacqueline Drohan, a lawyer who is chair of the New York State Bar Association's Task Force on the Treatment of Transgender Youth in Sports.

In addition to state laws, at least one court has interpreted federal Title IX protections to apply to trans athletes, though the law is not settled. A ruling from the 4th Circuit Court of Appeals found that a transgender athlete ban in West Virginia violated a middle school student’s rights under Title IX. The state is appealing the ruling.    

But even with constitutional protection, there is a balancing test, Redfield said. Courts will consider the state’s interests - in this case preventing discrimination - and its means of meeting that goal. "No particular outcome is guaranteed and the individual facts of the case will matter," she said. 

The Coalition to Protect Kids NY did not respond to our inquiries. 

The coalition opposing Proposition 1 claims the proposed amendment to the state constitution could mandate that schools allow biological males to compete in girls' sports.

Voters may not realize the state already provides protections for transgender athletes to play on teams that align with their gender identity. The amendment would strengthen those protections, making them more robust against legal challenges. However, even with an amendment, courts would look at the facts of each case and balance the interests of all parties in a lawsuit.  

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