BUFFALO, N.Y. — When voting begins for the 2024 election, you'll see a state proposal on the bottom, or back, of your ballot.
Proposal 1: Amendment to protect against unequal treatment.
You'll see the following description on your ballot:
"This proposal would protect against unequal treatment based on ethnicity, national origin, age, disability, and sex, including sexual orientation, gender identity, and pregnancy. It also protects against unequal treatment based on reproductive healthcare and autonomy."
Voters are then asked to vote yes, to include the amendment change into the state constitution, or vote no, and leave the protections out of the state constitution.
There has been considerable effort by lawmakers and advocacy groups on both sides of the aisle to sway voters to support or reject the ballot proposal.
There have been numerous hypothetical claims about Prop. 1 and what it will or won't do made by lawmakers or advocates.
2 On Your Side sought a legal explanation of Prop. 1, rather than a partisan one, for this story.
WGRZ spoke with the Bernadette Gargano, Director of Clinical Legal Education at the University at Buffalo Law School, about Prop. 1
Gargano is a former law clerk at the Western District of New York under the Hon. William Skretny.
"I've done a good amount of work with civil rights," Gargano said. "In fact, my clinic is about promoting equal protection and civil rights."
In the simplest terms, Prop. 1 codifies already existing state law into the New York State Constitution.
"These protections are things that are already enshrined in New York law, but it allows constitutional protection for these things, rather than just by statute," Gargano said. "So in other words, a statute could be amended or rescinded, and the Constitution protects the rights to a greater extent."
Gargano says that if the current protections under state law for those groups identified in the proposal could be easily reversed if there were changes in the legislature or executive chamber, or even at the federal level.
"They can still be protected and also so, for example, they can't be changed by a simple amendment or a law being rescinded by the legislature, "Gargano said. "There's a longer a more complicated process for getting a constitutional amendment changed."
2 On Your Side asked Gargano several questions regarding Prop. 1 that we have seen conflicting debate about.
Does Prop. 1 change already existing NYS Law?
"No," Gargano said.
Does Prop. 1 protect against LGBTQ+ discrimination?
"Yes," Gargano said.
Does Prop. 1 change state law in terms of participation in any sports, whether it be college of high school?
"No, because, again, we already have laws to address that," Gargano said. "If there were going to be issues with respect to that, we would have seen them already with the statutes and laws that we already have."
Does Prop. 1 impact parental rights?
"No, it doesn't impact parental rights," Gargano said. "So I have heard some folks calling it, you know, a parental replacement act. That's not correct. Prop. 1 doesn't change anything with respect to, for example, a parent and a child who may want certain medical care."
Does Prop. 1 change the voting requirements in the state?
"No, Gargano said. "It's not going to change any of that, absolutely not. This doesn't have to do with voting."
Would Prop. 1 eliminate state quotas or incentives for like MWBE hiring or contracts?
"That's not its intention," Gargano said. "So I don't see it doing that, what I see is those types of things being allowable under state law. They certainly are now, and this is not going to change anything."
"Does prop one guarantee abortion rights in New York State?"
"It doesn't use the word abortion, but it does talk about pregnancy outcomes and autonomy," Gargano said. "So yes, I would think that would cover abortion. And I think it's sort of an important use of language, because, as we've seen in other states, that some women are even being prosecuted if they have a miscarriage or they can't get medical treatment if they're miscarrying because doctors are too scared to provide the correct treatment. So in this case, it would ensure that doctors can care for women throughout their pregnancy or their choice not to have an abortion."
The existing constitutional language for discrimination protections is race, color, creative, religion. Why don't those four kind of criteria cover today's modern conversation?
"I think for a couple reasons," Gargano said. "Some of this language is just updating it to be consistent with what we have in federal law. For example, national origin, ethnicity, those are parts of existing civil rights law under federal law. So it's updating in that way. But one thing I think is particularly important is having sex discrimination part of the Constitution. There's no reason that I can see to preclude someone based on their sex or gender from protections. And in fact, those protections do exist right now under federal law and under the interpretation of the Roberts Court on things like, 'What does sex cover?' They have decided that covers gender."
Regarding protections for those with disabilities. How does prop one impact in either direction for that?
"Prop. 1 does cover individuals with disabilities, and it enshrines that in the Constitution," Gargano said.
In regards to parental care, Gargano emphasized that, despite hypothetical claims by some lawmakers, the mere passage of this ballot measure does not take away parental rights when it comes to gender related medical care.
"Absolutely not," Gargano said. "Nothing will change with parental rights regarding gender or gender identity, or gender affirming care. Parents will still have all the same rights that they had before this amendment, even if it passes."
According to Gargano, the same goes for sports, and the notion that this proposal would lead to an influx of transgender athletes playing on various teams.
"It's not going to change any law with regard to if a child identifies one way or another way, or a teenager does the the existing law is already there," Gargano said. "And in fact, under Title Nine of the federal civil rights act that is already covered."
As with most legislation, there is the likelihood the ballot measure will be challenged in court, however Gargano believes that since most of these protections are already state law, a successful lawsuit would be difficult.