Does Bruce Blakeman’s ban on trans players on girls’ teams violate state law?

New York’s Gender Expression Non-Discrimination Act prohibits discrimination on the basis of gender identity.

Nassau County Executive Bruce Blakeman

Nassau County Executive Bruce Blakeman Howard Schnapp./Newsday RM via Getty Images

When Republican Nassau County Executive Bruce Blakeman announced a de facto ban on trans girls from participating in women’s sports at county-run facilities, he said he “know(s) of no policy that would strike that down.” But since 2019, the state’s Human Rights Law has explicitly covered discrimination on the basis of gender expression. 

Blakeman on Thursday signed an executive order that prohibits girls teams that include trans players from using Nassau County’s facilities to play. When announcing the order, Blakeman made sure to say that his action would not ban any transgender athletes from playing, only that players assigned male at birth would need to play on men’s or co-ed teams, rather than on the team that aligns with their gender identity. “This is not precluding anybody from participating in sports,” Blakeman said. “What it is, it’s identifying there are women and girls who spent a tremendous amount of time and effort to excel and compete in their sports that are women’s sports.” 

Although the order would not outright ban trans girls from playing in sports – and it explicitly allows trans boys to participate in men’s sports – the order nonetheless seems at odds with the state Gender Expression Non-Discrimination Act, commonly referred to as GENDA. “This is exactly the type of thing that GENDA was passed to prevent and does in fact prevent,” said Bobby Hodgson, director of LGBTQ litigation at the New York Civil Liberties Union. “The top line here is that this is illegal – New York state prohibits discrimination on the basis of gender identity.” 

Hodgson said that it makes no difference if trans girls can still technically play on sports teams, as long as they are men’s teams or co-ed. “It’s preventing trans girls from accessing the same rights as other girls, and it’s singling out people’s gender identity as a characteristic that… prevents transgender people from being able to access the same public accommodations as cisgender people can access.” He said that the order “functionally” prevents trans girls from participating in women’s sports. “Requiring trans girls who are trans to compete on boys teams is effectively barring them from competing,” Hodgson said.

Although trans female athletes have come under significant scrutiny in recent years, no such high-profile cases have occurred in New York, or in Nassau County. Blakeman admitted that there was no inciting incident for his executive order, which came as a surprise to many advocates and other political observers. “I am not aware of any incidents in Nassau County, but we wanted to get ahead of the curve,” Blakeman said Thursday. He called his action a nonpartisan anti-bullying measure, characterizing trans female athletes as men attempting to bully their way into women’s sports.

Transgender New Yorkers have had some explicit protections since at least 2015, when then-Gov. Andrew Cuomo issued an executive order with the tenets of GENDA while the legislation itself languished in the state Legislature after decades of near continual Republican control. That executive order was one of the reasons that the Empire State Pride Agenda, the leading statewide LGBTQ rights organization, decided to disband. At the time, it asserted that it had achieved its mission with the executive order, which lawmakers finally codified in 2019 when Democrats regained control of the state Senate. 

But Elisa Crespo, executive director of the New Pride Agenda, said that Blakeman’s executive order is a crystal clear example of the ongoing work that still needs to be done to protect LGBTQ rights. “This is an example of our sounding the alarm of why there needs to be organizations like the New Pride Agenda,” Crespo said. “But in addition, homophobia and transphobia – New York is not immune to that.” In recent years, for example, Drag Queen Story Hours at public libraries in the state – and even in liberal New York City – have become a cultural flashpoint to push anti-gay and anti-trans rhetoric.

According to the executive order, sports organizations “must expressly designate (as male, female or coed) based on the biological sex at birth of the team members/participants when applying for a use and occupancy permit to utilize Nassau County.” The order defines biological sex as the gender on a player’s birth certificate as it was filed at the time of the player’s birth. In New York state, adults can file to have their birth certificate amended, including changing their birth marker. Minors can do so with consent from their legal guardian. The order directs the county Department of Parks, Recreation and Museums not to issue permits for use of county facilities for an event or competition that “allows athletic teams or sports designated for females, women, or girls to include biological males.” 

A spokesperson for the county executive specified that the onus falls on the sports organization to determine the gender assigned at birth for each player. But he did not answer how the county would determine the veracity of an organization’s application. It’s unclear whether the county would need to collect birth certificate data for each player if it wants to reject a permit, or if someone raises an objection to the issuance of a permit.

The order drew immediate condemnation from Democratic officials in the state, including James. In a statement, she said her office is “reviewing our legal options” and called the order “transphobic and deeply dangerous.” Gov. Kathy Hochul said in a statement that New York has “some of the strongest protections in the nation for the LGBTQ+ community” and that her administration is “committed to enforcing these laws.”

But Crespo said that even if the order is struck down quickly, “the damage is already done,” especially in light of recent news. Blakeman’s action comes on the heels of the high-profile death of nonbinary teenager Nex Benedict in Oklahoma. Benedict was in a fight with older students the day before they died that resulted in their hospitalization. Trans and LGBTQ activists have attributed Benedict’s bullying – and by extension their death – to Oklahoma's restriction anti-transgender laws that include preventing trans and non-binary people from using restrooms that align with their gender identity. Benedict’s bullying attack took place in a bathroom. Police have said that their death was not a result of trauma from the fight, but are still awaiting an official cause of death. “Pushing this anti-trans rhetoric, that trickles down,” Crespo said. “Young people listen to that…we start to other trans people and it quite literally leads to violence.”