The New York Equal Rights Amendment recently approved by voters is of greater consequence than many may realize. This is because its promoters tended not to emphasize its more far-reaching impact when seeking voter approval.

These far-reaching consequences it must be emphasized are not the negative outcomes warned against by opponents to the Amendment. For example, the protection against discrimination based on national origin will not give non-citizens the right to vote. The requirement that a voter be a citizen is specifically stated in a separate provision of the Constitution, and it is a basic rule of interpretation that a specific provision prevails over a more general statement.

Nor will student and senior discounts be ended as discrimination based on age. These discounts reasonably serve a legitimate purpose and will be sustained because those not receiving the discount have no civil right to a discount. The NYERA only covers discrimination in civil rights.

Also, where the inclusion of transgender girls in sports competition with biological girls would deprive the latter of a fair opportunity to compete, that would constitute an impairment of a civil right within the meaning of a provision of the NYERA which states “nor shall any characteristic listed in this section be interpreted to interfere with, limit, or deny the civil rights of any person based upon any other characteristic identified in this section.” Transgender girls cannot claim the benefit of this provision because they have no civil right to deprive others of an opportunity for fair sports competition.

So what then are the positive far-reaching consequences of the NYERA?

The Amendment fixes the problem arising from a court determination that the non-discrimination portion of Section 11 of the New York Bill of Rights is not self-executing. That meant that even when there was a clear violation of Section 11’s ban on public and private discrimination, no challenge could be brought. Instead, suits had to be commenced under civil rights laws. This was the outcome of the court’s determination that only the legislature could define the term “civil rights.”

By adding the words “pursuant to law,” as the NYERA does, Section 11 is now self-executing. That means that a challenge may be brought directly pursuant to Section 11. In assessing the validity of a law the courts will now have to decide whether it works any discrimination in the civil rights of a member of a protected group.

Given that Section 11 is now self-executing, Section 11’s ban on “any” discrimination is of great significance. There are two types of discrimination, intentional discrimination and disparate impact discrimination. Disparate impact discrimination occurs when a seemingly neutral law has an unreasonably disparate impact on members of a protected group. The New York and federal equal protection clauses bar only intentional governmental discrimination. Now for the first time, a law can be challenged by showing that it works an unreasonable disparate impact on protected persons.

This change is profound. Consider the example of the New York State budget. That budget is a law. Some of its provisions may create disparate impacts that are not reasonably justified. The suit can now be brought to enjoin expenditure under these provisions until the unreasonable disparate impact on a protected group is eliminated. Of course, injunctive relief can be delayed to allow a reasonable time for correction, but the day of reckoning would at some point arrive.

In making governmental discrimination pursuant to law challengeable on disparate impact grounds New York is leading the way to the next generation of constitutional protection of civil rights.

Evan Davis, a New York City lawyer, served as counsel to Gov. Mario Cuomo and is a past president of the New York City Bar Association. He participated substantially in discussions over the terms of the NYERA.