TRANS BAN GETS UGLY
Nassau prohibition riles Tish, but the county is suing her
A Long Island county that has moved to prevent transgender women and girls from taking part in sports consistent with their gender identity has sued state Attorney General Letitia James after she urged the county to rescind its executive order.
The lawsuit, filed by Nassau County in federal court on Tuesday, marks a major escalation in a public battle between the county’s Republican executive, Bruce Blakeman, and the Democratic state attorney general over the transgender sports ban.
Last week, James (left photo) issued a statement threatening legal action against the county over the order, declaring it “transphobic and blatantly illegal” and instructing Blakeman (right photo) to “immediately rescind” it. Her office also penned a cease-anddesist letter to Nassau County.
But before James went to court, Blakeman sent the first legal shot, filing a 12-page lawsuit in the U.S. District Court for the Eastern District of New York that said James’ cease-and-desist letter “violates the constitutional rights of biologically girls and women who are a federally recognized protected class.”
The complaint cited the U.S. Constitution’s 14th Amendment guarantee of equal protection, and argued the order conferred protections to women and girls seeking fairness in athletics. The reach of Blakeman’s order would be limited to county-run facilities.
The complaint seeks a declaratory judgement asserting that the county order is legal.
In a statement responding to the lawsuit, James’ office said: “Our laws protect New Yorkers from discrimination, and the office of the attorney general is committed to upholding those laws and protecting our communities.”
“This is not up for debate: the executive order is illegal, and it will not stand in New York,” said the statement.
Because James’ actions had been limited to a cease-and-desist letter and a press statement, it was not clear that Blakeman’s complaint had presented a controversy demanding intervention by the courts, said John Barrett, a constitutional law professor at St. John’s University.
“The jurisdiction of the court begins with actual cases and controversies,” Barrett said. “This complaint may be more in the nature of a press release or a political position than a serious commencement of litigation.”
A plaintiff in the lawsuit is the father of a female 16-yearold volleyball player who, the complaint claimed, could be subject to “risk of injury by a transgender girl” if transgender females are allowed to participate in girls youth sports. When Blakeman announced the ban two weeks ago, he could not cite for reporters any examples of transgender women or girls creating competitive disadvantages in athletics in Nassau County.
Blakeman said the county wanted to “get ahead of the curve.”
At a news conference Wednesday, Blakeman added: “It is coming to Nassau County — it is coming to all communities.”
He said courts have held that the “government can take appropriate, reasonable legal action to protect the citizens even if the harm has not actually been done yet.”
Gov. Hochul, a Democrat, issued a statement last month saying that Blakeman was seeking to “score cheap political points by putting a target on the backs of some of our state’s most vulnerable children.”
Barrett said the lack of concrete examples of harm in Nassau County’s lawsuit could hinder it by raising a question of legal standing.
“All of this is pretty abstract, and that kind of imaginary non-actual, non-concrete injury interest is usually a constitutional problem,” Barrett said. “It’s usually a basis for a court to conclude: We don’t have judicial power here.”
Susan Hazeldean, a Brooklyn Law School professor, agreed that Nassau County had not been harmed. She said she did not see a legal basis for the claim and that it appeared to be aimed at getting positive publicity.
But Hazeldean added that the state may not seek to dismiss Nassau County’s lawsuit. Instead, the complaint may simply serve as a starting gun for arguments in court about the ban’s legality.
“Presumably the State of New York believes that the executive order is unlawful and wants to see it enjoined,” the professor said. “I assume they’re going to want to make that clear to the court.”