Gender-Identity, Gender Expression, Minors and Parental Rights/ Sports- and Prop One

​

Prop One expands constitutional legal protections to categories of persons beyond those previously listed in the Equal Protection Clause of the New York Constitution. Several newly protected categories include age and sex, including sexual orientation, gender identity, and gender expression. Any rights afforded by Prop One or the so-called ERA will be considered fundamental rights, and any infringement of those rights will likely be subject to a higher level of judicial 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”).

​

The proposed amendment provides fundamental rights to “persons,” a word defined in New York law, to include minors. Like adults, children, beginning at birth, are “persons” under the proposed amendment, according to New York State statute and case 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.

​

Prop One gives minors the fundamental constitutional right to “gender identity,” and "gender expression."  NYS Department of Education’s "2023 Legal Update and Best Practices," titled, Creating a Safe, Supportive, and Affirming School Environment for Transgender and Gender Expansive Students, already allows children as young as in pre-kindergarten to gender-transition without the knowledge of their mothers, fathers or legal guardians.

Prop One empowers courts to strike down restrictions, including parental notice or consent, regarding their minor child’s gender-transition, by applying a heightened level of judicial scrutiny or strict scrutiny. For example, Prop One emboldens courts to uphold policies such as NYSED’s " 2023 Legal Update and Best Practices," presently in effect.

​

Current NYS Statutes already allow minors to obtain various forms of health treatments and medical interventions, including abortion, without parental notice or consent. NYS Human Rights laws, where sex, sexual orientation, gender identity and gender expression are already protected classes, do not explicitly allow minors to gender-transition without notice or the consent of their parents or legal guardians. These statutes however also do not explicitly provide  schools with more authority than parents regarding the non-medical gender transitioning of their kids, as NYSEDS' "Legal Update and Best Practices," does. The courts will ultimately decide whether any minor can gender transition, non-medically or medically, without parental notice or consent. Prop One provides the judiciary with the constitutional framework to decide either way. Parental rights are at risk, and courts will be free to deprive them of their right to notice and to consent or not consent to their child's desire to gender-transition, medically or non-medically. 

​

Parents are losing custody across the U.S. for refusing to affirm their child’s desire to gender-transition. Regarding relevant school policies, in Maryland, for example, courts have already ruled that certain parents lack standing to challenge educational policies similar to NY’s. Officials are looking to disallow boys and men from competing against girls and women in school sports as close to home as Nassau County, NY,  to no avail. These are turbulent matters that courts are presently grappling with in NY, and across the U.S. 

​

WE SHOULD BE extremely concerned about Prop One's very real threatened impacts on parents and children in New York. It carves out fundamental rights for minors that are likely to clash with parental rights, both federal and state. Prop One allows courts to decide the fate of families.

​

Prop One also transfers power to the courts and gives the judiciary a firm foundation for ruling that any ban against transgender athleticism violates the fundamental rights of persons based on gender identity or gender expression. The question Prop One ultimately poses regarding single sex sports, locker room and restroom spaces, for example, is whether courts will weaponize biology against girls and women, as they did prior to the ratification of the 19th Amendment to the U.S Constitution in 1920. Prop One takes us backward not forward. 

Religious Liberties and Prop One

As New Yorkers prepare to vote on a proposed amendment to our state constitution, we must consider how the addition of sweeping protections could paradoxically erode the very freedoms we seek to preserve. While many of these changes are presented as expanding individual rights, they risk undermining the principles of liberty enshrined in both the U.S. and New York Constitutions.

​

Broadening protections in areas such as sexual orientation, gender identity, and gender expression for minors, as Prop One does, will likely involve expanding government power into domains where it does not belong. Consider the First Amendment's guarantees of free speech and religious liberty. The Court has made it clear that government neutrality is essential in matters of religion, as highlighted in Edwards v. Aguillard (1987). By introducing constitutional amendments that potentially mandate the inclusion of certain ideologies—whether related to gender, race, or religion—our state risks violating the Establishment Clause by favoring one set of beliefs over another, while also chilling free speech and religious freedoms. 

​

Further, adding layers of constitutional protections can create a legal landscape where competing rights clash, leading to judicial overreach. In cases like West Virginia State Board of Education v. Barnette (1943), the Court famously defended individuals’ rights against compelled speech, warning against government mandates that interfere with personal conscience. Expanding constitutional protections to cover increasingly specific categories could lead to conflicts where the state enforces ideological conformity, rather than respecting individual freedom of thought.