New York State Bar Association Supports Equal Rights Amendment to State Constitution

By Jennifer Andrus

March 1, 2022

New York State Bar Association Supports Equal Rights Amendment to State Constitution


By Jennifer Andrus

There is no amendment to the New York State Constitution or the U.S. Constitution that guarantees equal rights for women and other marginalized groups.

The New York State Bar Association’s Women in Law Section held an event Feb. 28 to support work underway in the state Assembly and Senate to add such an amendment to the state constitution. It was held purposely on that date to commemorate the first National Women’s Day held in New York in 1909. The day would evolve into International Women’s Day, which is now celebrated on March 8.

Moderator Kaelyn Gustafson recounted a survey of Americans conducted in 2019 that found that 80% were surprised to hear that equal rights for men and women are not guaranteed under the U.S. Constitution.

The federal ERA passed Congress in 1972 and has been ratified by 38 states. Since the 1970s, more than half of the states have passed their own equal rights amendments that prohibit discrimination on the basis of gender. New York State is not one of them.

The event featured a panel of former and current lawmakers and those working on equal rights law across the state. Former Rep. Elizabeth Holtzman fought and won an extension of the ERA timeline during her time in Congress. She recounted how some of the goals of the groups who fought for the federal ERA such as allowing women to serve in the military and unisex bathroom have now been achieved.

Holtzman warns supporters to prepare for continued opposition to the ERA from conservatives.

“It’s about as deep seated a prejudice as there is in human existence. It’s found in almost every society. It’s sad to say we have not progressed very far since 1982,” she said. “The ERA is stymied by the extreme right wing.  We now have 38 states ratifying it but how do we recognize that. “

Holtzman says there may be enough votes in the House to recognize the amendment but not enough votes in the U.S. Senate to pass it because there would likely be a filibuster.

Professor Katherine Franke of Columbia Law School’s ERA project has a more optimistic view of the chances for the federal ERA to pass the U.S. Senate. On the state level, Franke says the constitution is outdated.

“It’s incredibly important that we amend the New York State Constitution to drag it into, not just the 20th but the 21st century, and that’s why this bill that is before the New York State Legislature is so incredibly important. How it differs from the federal ERA is that it would extend robust equality rights in the form of a modern version of substantive equality, not only to women. It would include race, color, ethnicity, but will also add disability, including pregnancy and pregnancy outcomes, sexual orientation, gender identity and gender expression,” she said.

Why do we need to an amendment? Franke says that the equal protection clause in both the state and federal constitutions only protect people from intentional discrimination. The equal protection clause does not allow affirmative measures to dismantle institutional discrimination, such as pay gaps between genders.

New York Senator Liz Krueger (D- Manhattan) gave the panelists and members an update on drafts of the constitutional amendments underway in both the Assembly and state Senate.

“It’s damn hard to change the constitution,” she said. Krueger says counsel in both chambers are working on drafts and plan to pass the same amendment in both houses by the end of the 2022 legislative session. Since a constitutional amendment must pass in 2 successive legislative sessions, it would be brought back for a vote in the 2023 session and if passed would appear on the General Election ballot in November of 2023.

Krueger says an effort like this comes about once in a generation and she is working to write an amendment that covers all New Yorkers. When asked about the likelihood of passage this session, she was optimistic. “[Assembly Member] Rebecca Seawright (D-New York City) and I are dedicated to getting it thought both houses this session,” she said.

Lourdes Rosado of Latino Justice PRLDEF reminded panelists there is still opposition to the ERA in New York.  She asked for support of the lawmakers fighting for a state ERA. “New York State has pockets of conservative thought, we have to have (legislators’)  backs to counter false narratives from opponents,” she said.

Congresswoman Holtzman encouraged those in the panel and in the audience to keep up the fight.  “This is part of the process of recognizing the full humanity of the people who live in this country and we’re not there yet,“ she said.

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