RENO — Nevada voters are deciding whether to adopt an Equal Rights Amendment in their state constitution, a sweeping update that would guarantee equal rights to people who have historically been marginalized.
Question 1 would amend Nevada's Constitution to ensure equal rights for all, “regardless of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry, or national origin,” a more wide-ranging amendment than the federal ERA that Nevada adopted in 2017, which outlaws discrimination based on sex, though the push to ratify it in the U.S. Constitution remains gridlocked.
In the contentious debate over whose rights should be protected, those for and against the amendment agree: if passed, Nevada would have the most expansive Equal Rights Amendment of the 26 states to adopt their own ERA.
Congress has long held that existing law already protects for gender equity and that federal and state constitutional and statutory provisions prohibit discrimination for the same identities. Proponents of Nevada's ERA say that it would provide new tools to challenge discrimination and close loopholes where those rights are not necessarily guaranteed. Nevada Sen. Pat Spearman, one of the sponsors, cited age protections for older workers laid off in the pandemic and transgender people having their identity protected as tangible differences under the amendment.
For years, Spearman, a Democrat from North Las Vegas, has likened such an amendment to a continuation of other justice-oriented movements such as abolitionists working to end slavery and migrant workers lobbying for improved working conditions.
“And just like we questioned that today, and can't believe it, there'll be people in the future who will be saying, ‘It's a really good idea. And I'm glad they did it. But I can't believe that they had to do it in order to bring equality for everybody,’” said Spearman, who is Black and the first openly lesbian member of the Nevada Legislature.
Kate Kelly, an author and activist who has traveled the country promoting both federal and state ERAs, added that while many are protected from discrimination through state and federal statutes, enshrining those rights in the Nevada Constitution holds more weight and would be tougher to overturn.
“(Laws) can be chipped away at or reduced,” she said. “And we've seen that in the very recent past – statutory protections we thought were forever are being chipped away.”
Conservative groups oppose the expansiveness of the amendment, claiming it will cause a “flood of litigation” due to its vague nature and open the door to judicial discretion on a host of gender identity and LGBTQ rights issues.
Janine Hansen, who leads the movement against Question 1, said the protections for gender identity could force her church in Elko County to perform gay marriages against religious leaders' wishes.
“They have the right to get married,” she said. “But they want to force me and my church to allow them to get married.”
Hansen also does not want transgender people using bathrooms that align with their gender identity – another main talking point of those against the ballot measure.
Fred Lokken, a political science professor at Truckee Meadows Community College, said the Equal Rights Amendment would not bar churches from their First Amendment rights “as long as they're longstanding beliefs and practices.”
While Hansen also suggested the amendment's protection against discrimination of age could lead the state to lower the age of consent for sex, Lokken said it wouldn't alter the existing legislative process required to change it.
“No one is advocating that, there is no logical reason to do that (and) it would have to go through a legislative process that would in fact, allow for a tremendous amount of input and visibility to it,” he said.
Critics say they also fear the amendment's protections based on sex would allow expanded coverage of state-funded abortions. They point to a 1999 ruling by the New Mexico Supreme Court, where the court ruled that due to the Equal Rights Amendment, abortion coverage on Medicaid could not only be restricted only to women whose pregnancies are life-threatening or a result of rape or incest.
Nevada law protects abortion rights up to 24 weeks. Abortion is already covered under Nevada's Medicaid coverage in cases of rape, incest or if the abortion is deemed necessary to save the life of the mother.
Though it shares its namesake, Nevada's proposal is different from the decades-long effort for the adoption of the federal ERA.
In 2020, versions of the federal amendment had been adopted by 38 states, pushing it over the threshold to be adopted federally. However, that came decades after the ratification deadline Congress set after it was passed in 1972, and five states – Nebraska, Tennessee, Idaho, Kentucky and South Dakota – have moved to remove their prior approval. That means states can support it individually, though it is not ratified into the U.S. Constitution.
Twenty-six states in total have adopted their own versions, some of which are more far-reaching than the federal ERA, while others cover specific circumstances of gender-based discrimination.
Nevada voters are also deciding whether to raise the statewide minimum wage for all workers to $12 starting in 2024.
And they are considering a proposal to implement ranked-choice voting, in which the top five vote-getters would advance from a primary to a general election, regardless of political party affiliation. If no candidate receives a majority on the first count, the votes for the bottom candidate would be reassigned to voters' next preferences, continuing until one candidate has a majority.
Nevada would be the third state to use ranked-choice voting, joining Alaska and Maine, though it is used in many other local contests such as mayors' races.
To take effect for the 2026 midterm election, the measure would need to win a majority of votes this year and again in 2024 as part of the process to enshrine initiatives into the state constitution.
Stern is a corps member for the Associated Press/Report for America Statehouse News Initiative. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.