New York State is widely recognized for its social acceptance of the LGBTQ+ community. However, an executive order issued in February 2024 by Nassau County Executive, Bruce Blakeman, has led New Yorkers to question why the state has not stepped in and rescinded an executive order that is viewed as discriminatory policy directed at the transgender community.
On February 22, 2024, Blakeman issued, “An Executive Order for Fairness for Women and Girls in Sports.” The order contends that dividing teams based on “[…] the individual’s biological sex at birth,” in Nassau County’s 100+ sports and recreational facilities will ensure fairness, opportunity, and authenticity for teams designated for women. Proponents of the executive order argue that allowing trans women to play alongside other women puts other women at a physiological disadvantage. “The order states that women and girls are so strong. If they are so strong, what do they need your protection for?” said Emily Santosus, a New York athlete seeking to participate on a softball team. While the executive order maintains a hardline focus on trans women, it does not prevent trans men, non-binary, or intersex athletes from competing on teams designated as co-ed teams or men’s teams. As Juli Grey-Owens, Executive Director of Gender Equality New York Inc., asserts, legislators view trans men as “[…] just women who are trying to be men and they would never have an impact on a male league.” She continues, “[Legislators] only need to worry about trans women.”
Dr. Ross Tucker, a South African Sports Scientist argues, “[…] there is still no scientific evidence to suggest that elevated testosterone levels in female athletes enhance performance.” The production of naturally occurring testosterone (or other androgens) has never generated conclusive scientific evidence of competitive advantages. “I’ve seen my athletic performance decrease tremendously [after transitioning]. I’m not the strongest. I’m not the fastest on my team by far,” said Grace McKenzie, a New York rugby player and lifelong athlete. “I am a strong athlete because I’ve trained my entire life to be an athlete, not because I have some sort of biological advantage.”
With the executive order’s introduction two months ago, people are left wondering how the legal battle has failed to conclude. The executive order violates the Gender Expression Non-Discrimination Act (GENDA), passed by the New York Assembly in 2019. When GENDA was introduced, Assembly Speaker Carl Heastie released a News Release saying, “Everyone has a right to live their life free from hostility and exclusion, and our youth deserve support in discovering their identity in a way that promotes happiness and positive mental health.”
Governor of New York, Kathy Hochul, and Attorney General of New York, Letitia James, have released public statements expressing their condemnation of the executive order and highlighting the illegality of it. James cites New York’s Civil and Human Rights Laws in her arguments against the order. “This executive order is transphobic and blatantly illegal. Nassau County must immediately rescind the order, or we will not hesitate to take decisive legal action,” states James on her government webpage. McKenzie emphasizes James’ argument, describing the executive order as an assault on an invisible enemy. She argues, “[…] the executive of this county has no examples or records of a single trans person playing sports […] that this is causing issues, that people have been hurt, that opportunities have been lost.”
According to CBS News, on March 1, 2024, James issued a cease-and-desist letter to Blakeman’s office, which prompted Blakeman to file a federal lawsuit against the Attorney General. This was done in an attempt to prevent her from taking legal action that would have the executive order rescinded. New York Daily News reports that on April 12, 2024, Nusrat Choudhury, a judge on the United States District Court for the Eastern District of New York, threw out Blakeman’s lawsuit, paving the way for the Attorney General to move forward with her lawsuit. Veris Media Group reached out to Governor Kathy Hochul and Attorney General Letitia James for comment, but has not yet received a response.
The first Nassau County team affected by this executive order is the Roller Rebels who practice at the United Skates of America facility in Seaford, New York. Represented by NYCLU Staff Attorney Gabriella Larios, the Roller Rebels have one transgender player active on their roster. The team recognizes the major impact sports have had on their lives and is choosing to sue Blakeman in an effort to preserve the inclusivity of their team. Santosus proclaims, “I’m 48 years old. I’m not playing for scholarships. I’m playing to have fun, to join a team, to enjoy myself.” With Blakeman’s executive order in place, the United Skates of America facility would be forced to restrict or ban future access to the Rebels.
Another point of contention with Blakeman’s executive order is his approach to defining gender. Historically, anti-trans bills have intermingled the terms sex and gender. According to PFLAG, sex is assigned at birth and designed by primary and secondary sex characteristics, and gender is “[…] socially constructed roles, behaviors, activities, and attributes that society deems to correlate with a person’s assigned sex.” Maxine Moylan, Coordinator of an LGBTQ+ Resource Center in Suffolk County, New York, was asked why politicians misconstrue the two terms, but she could not determine whether it is through “malice or ignorance.” In the case of Blakeman’s executive order, conflating the two terms in legislation can establish a disastrous precedent that can hurt more than just individuals identifying as LGBTQ+.
The fight for transgender equality in the United States has been tumultuous, resulting from lengthy state legislative processes and strong conservative pushback. In April 2023, as reported by the Associated Press and published by Sports Illustrated, President Biden made an effort to reduce nationwide bills opposing the participation of transgender youth in sports and athletic programs. The law, originating from the Department of Education, states that no school or college receiving federal funding is allowed to bar access to transgender athletes on sports or athletic teams consistent with their gender identity. The Achilles’ heel of the bill is that restrictions “…would be allowed only if it serves ‘important educational objectives,’ such as fairness in competition and reduction of injury risks,” as stated in the article. While this phrasing in Biden’s bill sounds equivocal, its convoluted nature echoes arguments present in executive orders like Blakeman’s.
Other states are also fighting battles over transgender athletes participating in public sports. According to Trans Legislation Tracker, as of April 18, 2024, there have been 544 anti-trans bills introduced across 42 states. Due to overlaps in anti-trans legislation, most of these bills cover multiple categories, including sports and education. It is also important to understand that these anti-trans bills do not include executive orders, like the one issued by Blakeman. For instance, in Wisconsin, Governor Tony Evers recently vetoed a bill barring access to transgender athletes on sports and athletic teams consistent with their gender identity. The bill, as is the case with most of the 544 bills tracked, was proposed by the state’s Republican-controlled Assembly. By Wisconsin going through the proper legislative process, action was ably taken by the Governor to stop the bill from being signed into law. Grey-Owens explains that in Blakeman’s case, “[…] An executive order is law as long as that executive is in place.”
Blakeman’s executive order underscores the ongoing struggle for comprehensive social acceptance. Addressing trans women’s participation in sports and athletic programs is necessary. It is evident by the increasing number of anti-trans sports bills that the United States needs to act at the federal level, developing legislation that once and for all puts this issue to bed and protects all athletes’ rights to participate in inclusive and fair competition. “All we’re looking to do is have a good life. We’re not looking to cheat. We’re not looking to harm anyone. We’re just trying to survive,” Grey-Owens said in her closing remarks.