Calls grow to expand protections in state
Posted December 4, 2018 7:23 a.m. EST
ALBANY, N.Y. _ Amplified by the MeToo movement, the federal Equal Rights Amendment, a cause championed by feminists in the 1970s and 1980s, is getting newfound attention from legislatures in Southern states like Virginia and South Carolina.
After Illinois ratified the measure in May, it seemingly put the ERA, which guarantees equal protections for women in the U.S. Constitution, just one state from the 38 needed for ratification _ though legal hurdles remain.
U.S. Rep. Carolyn Maloney of New York's 12th Congressional District has been lobbying states to sign on to the constitutional amendment and introduced legislation doing away with a 1982 deadline for ratification, which some say disqualifies the new approvals.
"As we see attacks on women's rights, autonomy, and bodies every single day from the Trump administration and the Republican Congress, passing the ERA is our strongest weapon to fight back," Maloney said in a statement.
The amendment _ which states, "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex" _ was first introduced in Congress in 1923. It passed both houses in 1972, but was not approved by two-thirds of U.S. states by the 1982 deadline.
New York signed on to the federal ERA decades ago, but on a state level, patchwork laws and unequal protections under the state constitution and New York's civil rights law persist, in part because New York has never amended its own constitution.
"New York's constitution mentions other different classes like race, creed and religion," said Susan Harper, chair of the state bar association's women in law section. "If sex were in there, it's possible that the evolution of cases and how cases have played out over the years would have been different, because our fundamental rights would have been enshrined in the constitution."
Eleven states, including California, Oregon and Illinois, have passed state ERAs pertaining to women. Without specific constitutional protections referring to gender, New York women are vulnerable on both the federal and state level, according to Harper.
"That's the thing that is quite surprising to most people," Harper said. "In New York, we are obviously the cradle for the women's rights movement in this country. Having language in our state constitution is really important because for women, there is always a concern that someone can come in and roll back our rights."
Excitement over the ERA has died down since the 1980s, when the opposition was led by Phyllis Schlafly, a constitutional attorney and conservative activist who died in 2016. Schlafly's movement fought for traditional gender roles and propelled the notion that the amendment would have far-reaching societal implications on everything from gender-segregated bathrooms to men-only military drafts.
Republicans are also concerned that ratification would erode abortion restrictions and note that a series of U.S. Supreme Court decisions have ruled in favor of gender equality, citing the 14th Amendment, which prohibits states from denying "equal protection of the laws."
It's notoriously difficult to get a state constitutional amendment passed in New York. The change must be passed by the Legislature twice and also approved by voters in a referendum. Now that Democrats control both houses, some lawmakers hope that there will be momentum on a state level and are looking to apply ERA protections more broadly.
State Sen. Liz Krueger introduced a state constitutional amendment that would apply equal protection to a wide range of protected classes, like the disabled and LGBT individuals, as well as classes with "other immutable characteristics."
"Transgender people are covered in some counties, in some activities, but not the state. Disabled people have federal protections," Krueger said. "We were attempting a fairly global approach. We attempt to address every possible situation."
Of the states that have passed amendments, none explicitly granted equal rights to LGBT people or the disabled.
Inconsistent protections for various protected classes may become relevant when a person falls into more than one protected category. That was the case for a client of employment attorney Sarah Burger, who filed a workplace discrimination lawsuit on behalf of the African-American transgender woman.
"Very rarely does a client come in and say, 'I think I was discriminated only because of my race or my gender,'" Burger said. "If the standard and the law is different, then in order to resolve the issue I almost have to tear apart my client. It creates a very ridiculous situation."
While Burger's client was litigating the workplace discrimination case citing federal law, had she been suing the defendant on a state level, Burger said, she would only have been able to secure attorneys' fees for the gender discrimination, not the other categories. There are also discrepancies among counties, cities and towns in New York, Burger said.
Burger, an executive board member for New York's branch of the National Employment Lawyers Association, said revising the state's human rights law to be consistent may offer a short-term solution.
"There are enormous disparities between state and federal human rights law and huge disparities between state law and New York City's civil code," she said.