Why the Equal Rights Amendment Is Again a Hot Topic in New York

The former congressman rocked back and forth, his face turning red as he jabbed his finger in the air. It had been 18 months since Lee Zeldin lost his bid to become governor of New York, and now he was back at a rally in Albany, with a new war to fight.

The enemy was a proposed Equal Rights Amendment to the State Constitution. But instead of attacking the amendment’s signature purpose — safeguarding abortion protections — Mr. Zeldin, a Republican, railed against what he framed as the Democrats’ secret agenda: forcing sports teams to welcome transgender athletes.

“There has been no greater attack on women’s rights and girls’ rights in the State of New York throughout any of our lifetimes than Proposition 1 in November,” he said at the rally in the State Capitol earlier this month.

The amendment, he added, was an “attempt by New York Democrats to deceptively put abortion on the ballot, when in reality it was a full-fledged attack on women’s rights, free speech, girls’ sports, rule of law and much more.”

As Election Day approaches, the fight over the amendment has taken on an outsize role in New York, even in a pivotal election year when the presidency, the House and state legislative races are on the ballot.

Voters were to decide the fate of the amendment in a binding statewide referendum this November, but that is now in flux. Last week, a state judge in western New York declared that Democratic lawmakers had made procedural errors in putting the referendum on the ballot, and ordered it removed. On Tuesday, the Democratic state attorney general, Letitia James, formally appealed the ruling.

The uncertainty surrounding the proposed amendment underscores the deep divisions between Democrats and Republicans and the ways that both parties have used it to fuel campaign rhetoric.

Democratic supporters say the Equal Rights Amendment would help safeguard the rights of women and anyone else confronted with discrimination based on race, disability, religion, sexual orientation, gender identity or other characteristics. (New York already has a number of anti-discrimination laws, but, advocates say, these protections could be removed by a future Legislature if political winds change. Amending the constitution is a more permanent measure.)

Republicans have tried to shift the focus away from the threat to abortion, an issue that Democrats have successfully used to win a number of high-profile races across the country. Polling shows that a vast majority of Americans support abortion access, and voters, even in Republican-led states, have consistently voted to preserve it.

Instead, Republicans have focused their efforts on what they see as a more persuasive argument: barring transgender athletes from girls’ and women’s sports. A Siena College poll released in April showed that 66 percent of New York voters appeared to share Republicans’ concerns, telling pollsters that they believed that high school athletes ought to be required to compete in the gender category they were assigned at birth.

On Long Island, the Nassau County executive, Bruce Blakeman, issued an executive order barring transgender athletes from more than 100 county athletic facilities, unless they agreed to compete according to their assigned gender. The order was struck down in court last week largely on procedural grounds; Mr. Blakeman has said he will appeal the ruling.

Those opposing the amendment include the Coalition to Protect Kids, which describes itself as a nonpartisan group “composed of New Yorkers from all walks of life dedicated to defeating the so-called Equal Rights Amendment.”

The group has rebranded the measure the “Parent Replacement Act,” raising the prospect that the amendment’s passage would override parental decision-making on medical issues such as transgender health care and vaccines. (The amendment’s architects say that it would have no impact on medical decisions involving minors.)

Filings show that the bulk of the group’s funding so far has come from the anti-abortion activist Carol N. Crossed, vice president of the New York chapter of Feminists Choosing Life, and the author of a book about the women’s suffrage movement entitled “Vintage Tweets: Suffrage Era Postcards.”

Amending the Constitution in New York is a multiyear process requiring the approval of two separately-elected legislatures, as well as a voter referendum. From the outset, the Democrats’ goal was to get the initiative on the ballot in 2024, when they predicted higher turnout would ease its passage.

But even in heavily Democratic New York, no ballot measure is a sure bet. In 2021, an initiative to expand voting by mail that Democrats considered a fait accompli was defeated after a well-funded opposition campaign from the state Conservative Party.

The loss has haunted New York Democrats, who are determined not to repeat the mistake.

Last year, a coalition called New Yorkers for Equal Rights announced they intended to raise $20 million to support the initiative. Carolyn Maloney, a former congresswoman who is now the president of the New York chapter of the National Organization for Women, stepped in to assist with the fund-raising effort.

Recent changes to campaign finance rules further raised expectations for the fund, which organizers said would be spent on mailers, television ads and organizing. But the most recent available filings with the State Board of Elections show that in its first year, the coalition raised just $1.2 million.

Organizers said that they were not concerned with the slow progress on fund-raising, which they said would continue to ramp up as the election neared.

“New Yorkers are clear; they see the threats,” said Sasha Neha Ahuja, campaign director for the coalition, which includes the New York Civil Liberties Union, the New York Immigration Coalition, 1199 S.E.I.U. and the N.A.A.C.P. “They see what’s happening in Florida. They see what’s happening in Arizona.”

In the past months, the campaign has stepped up efforts, organizing 25 days of action alongside grass-roots groups from Long Island to Buffalo.

For now, Democrats may have to divert their energy to challenging the court ruling of Justice Daniel J. Doyle, a Republican in Livingston County, about 60 miles east of Buffalo. The judge ruled that Democratic leadership in New York had failed to receive an opinion from the state attorney general — a necessary step before amending the State Constitution.

Proponents of the amendment noted that lawmakers had followed the same process used in 18 past ballot initiatives, half of which are now law.

Chris Browne, the plaintiffs’ lawyer, was unimpressed with the Legislature’s defense that this was how these things had been done for years. His argument was simple, he said — their way was wrong.

“It’s not that complex,” Mr. Browne said.“ They could have avoided this if they had followed the process.”

Even if Democrats had followed proper procedure, Marjorie Byrnes, a Republican assemblywoman and one of the plaintiffs in the case, said that the amendment was being fueled by overblown concerns about women’s health and abortion.

Neither issue, she said, needed to be protected by the Constitution. “The Democrats control both houses, they control the governor’s mansion,” she said. “They don’t need a constitutional amendment.”

But Senator Liz Krueger, one of the primary architects of the amendment, said that the Republicans were misrepresenting what it would do. She said the underlying message was that New Yorkers should “not be discriminated against based on gender, which I’m very comfortable explaining to people and I think the vast majority of New Yorkers, frankly, regardless of party, don’t really have an issue with.”