'Impossible to enforce': The logistical hurdles facing the Nassau County transgender athlete ban

Nassau County Executive Bruce Blakeman followed a blueprint set by conservative lawmakers across the country last month with passage of a county law that restricts transgender females' access to play in girls and women's sport leagues.

The Republican-majority county legislature voted June 24 to approve a bill that denies anyone asking for a use and occupancy permit to hold a sporting event at one of the more than 100 county properties if there are transgender girls and women playing on female-only teams. Legal experts said the bill could possibly lead to athletes being harassed and bullied — and question how the law would be enforced.

“It’s impossible to enforce,” said Sasha Buchert, director of the Nonbinary and Transgender Rights Project at Lambda Legal, an LGBTQ+ advocacy group based in New York and Washington, D.C. “All it will do is heighten gender verification demands.”

Blakeman follows other conservative lawmakers who have implemented transgender access bans across the country. In Nassau, the bill applies only to county parks and properties; public school sports are largely played on school district fields. Pressed on the issue of enforcement, county officials have offered few specifics.

Critics have rebuked the measure as mere political bluster, arguing the law could apply equally to a 6-year-old tee ball league and a corporate golf outing.

Republican lawmakers have stood firm, saying they moved swiftly to pass the bill 12-5 to prevent transgender girls and women from causing injury to cisgender females, those who identify with the sex they were assigned at birth. But lawmakers have not cited any examples of that happening in Nassau County.

The bill allows transgender women to participate in coed leagues and does not prohibit transgender men from playing in men's sports. 

A Blakeman spokesman on Friday did not say whether he had signed the bill since the county legislature enacted it June 24. Without a signature, the bill automatically becomes a law 30 days later and takes immediate effect , according to the county charter and a copy of the legislation.

Enforcement methods questioned

The issue of enforcement stood at the center of a contentious public hearing before the vote, where hypothetical scenarios were presented to Victoria LaGreca, the deputy county attorney defending the bill’s intent.

Legis. Seth Koslow (D-Merrick) asked what would happen if he, as the organizer of a female-only league, misstated that his team had no transgender female athletes. LaGreca, after initially declining to offer an answer, said the county can enforce the law by conducting an investigation.

“Every case is different. And depending on the circumstances, the sport, the individual, what’s going on, the league, what facility they’re using, the circumstances will be different,” LaGreca said. “We might decide there’s another more appropriate action to take at that time.”

Asked if the county would ever remove an athlete in the middle of a game, LaGreca said it was unlikely.

“I don’t know if it would be appropriate to stop someone from playing in the middle of the game. It may be something that we have to deal with after the fact, privately,” she said.

Asked if Nassau police officers would ever be asked to intervene, LaGreca said, “That’s not our intention." The bill does not outline penalties for noncompliance.

She later added, “Our intention is not to publicly humiliate anyone.”

Legis. Rose Marie Walker (R-Hicksville) said coaches should remove a transgender female athlete if they sensed she might cause harm to other players. She advocated for a transgender athletes league.

"I would hope that the coach has enough sense to say, 'Look, we're not playing the rest of this game.' That police don't have to be called," she said. "That other things don't have to happen, but that the coaches themselves would stop the game if they thought their players were going to get hurt."

It’s unclear how coaches or organizations might self-police. Legal experts said coaches might have to investigate whether their athletes' gender identity differs from their sex assigned at birth before applying for a county parks permit. But the law could encourage parents and park-goers to accuse certain athletes of being transgender, leading to instances of bullying and harassment.

Transgender advocates said they fear that parents and school board members will publicly accuse athletes of being transgender. In Utah, a state school board member falsely accused a girl basketball player of being transgender in a Facebook post, according to news reports. The girl faced a barrage of harassing threats, and the state's governor called for the board member's resignation.

“Even if a law doesn’t create an official channel for enforcement or reporting, it encourages members of the public to overwhelm law enforcement or elected officials with allegations that someone who is transgender might be using a facility,” said Elana Redfield, federal policy director at the Williams Institute, a research center affiliated with UCLA School of Law. “Residents or other users of the parks might take it upon themselves to complain about the presence of transgender people or people they think are transgender.”

Such accusations spur tense moments, Buchert said. Parents will be "accusing athletes who don’t conform to gender stereotypes, or don’t look how, in their view, a girl or woman should look like, and will have no hesitation about making accusations about the most intimate details of their gender and sex.”

Redfield said young people also could be subjected to chromosome or hormone testing in order to use a county park, a practice commonly required by some competitive sports leagues. The county has not said whether it would consider testing as a means of enforcement.

Sex-verification tests were raised in a lawsuit brought by the Long Island Roller Rebels, an all-female flat track team, against Blakeman’s initial executive order in February banning female transgender athletes from playing all-female teams at county parks. LaGreca and Sheharyar Ali, deputy county attorneys, wrote in a brief responding to the Roller Rebels' lawsuit: "The executive order merely requires that a sporting organization disclose the biological sex of the organization’s members."

Gabriella Larios, a NYCLU staff attorney who represented the Roller Rebels, responded: "The Roller Rebels do not currently require or otherwise ask for such information about 'biological sex,' so in order to comply with the Order, the Roller Rebels’ cisgender and transgender members alike will be subjected to invasive inquiries about their anatomy and the sex they were assigned at birth, along with the prospect of being outed or otherwise having their confidential medical information revealed publicly if the Order requires that they be expelled from their team."

In May, a state Supreme Court justice struck down Blakeman’s executive order that would have had the same result as the legislature's bill.

Experts: Unlikely to hold up in court

Even if the county law is enforced, state laws have created workarounds that ultimately allow transgender athletes to compete in all-girls sports.

New York State law, like some states across the country, recognizes "sex" and "gender identity or expression" as protected classes, making the transgender bill unlikely to hold up in court, legal experts said.

In conservative states, "it is a blanket statewide policy, it's not something that only exists in a county," said Elisa Crespo, executive director of the NEW Pride Agenda, a New York LGBTQ advocacy and education group.

They point to New York’s Gender Expression Non-Discrimination Act of 2019, amending the state's human rights law to prohibit discrimination on the basis of gender identity and gender expression. The state Education Department also prohibits discrimination based on sex, including gender identity or expression.

Pat Pizzarelli, executive director of Section VIII, the governing body for public school sports in Nassau, said, “if a transgender female wants to go out for girls sports, you have to let them.”

While public school teams rarely use county properties, swimming competitions frequently take place at the Nassau County Aquatics Center at Eisenhower Park, he said.

"If there are any transgender females that are swimming for a team that uses the aquatic center, we’re going to have to find an alternative site,” Pizzarelli told Newsday, adding if the school is “using a county facility, I'm going to have to inquire” with the school whether any of the team's female athletes are transgender. "We don't ask that normally."

While there’s a workaround for transgender female athletes to compete in public school sports teams, private organizations that have their own inclusion guidelines but rely on a county permit would be subjected to the rules.

The order "applies equally to a recreational adult women’s golf league as it does to a charity field day organized by a youth organization for girls,” Larios said in her court filing on behalf of the Roller Rebels.

Title IX vs. 'Title 90'

During the legislative hearing on June 24, Republican lawmakers defended the bill. Allowing transgender women to participate in women’s sports is a violation of Title IX, the 1972 federal law that prohibits sex discrimination at institutions that receive federal funding, county officials said.

The Blakeman bill proposed a new section of county law with a nod to the federal act, labeling it “Title 90.”

In responding to the lawsuit from the Roller Rebels, county attorneys laid out their rationale for the law.

"... Bone density, bone mass, bone structure, and length differ in male and females. These are innate differences that do not disappear after altering hormones or genitalia," wrote deputy county attorneys Ali and LaGreca. "These inherent differences are what make it dangerous for transgender females to compete against and with biological females."

Legis. Scott Davis (D-Rockville Centre) criticized Republicans for "playing politics."

"We can base this bill on a process, on data, on experts in the field, by getting everyone together in the same room, so that the fear that everyone has — it is an extreme example. You have somebody who is 6-2, 250 pounds who goes on the soccer fields and just runs over everyone. I get it," he said. "What about the 5-2, 110-pound transgender [person] who doesn't even get into the game. No one seems to care at all about that person."

Republicans cited decisions by federal judges blocking the Biden administration from expanding transgender rights under Title IX in several conservative states. President Joe Biden's administration had expanded the definition of sex to include gender identity, and more than 20 states have filed federal lawsuits challenging the reforms.

Legis. John Giuffrè (R-Stewart Manor) cited the decisions by federal judges in Alabama and Kentucky blocking the Biden administration's Title IX reforms, declaring the county is within its power to pass such a law.

"The principle that Title IX, an act of Congress, overrules New York State law as it is attempting to be interpreted to allow biological males to play female sports, is established," he said. "I think the administration is on solid legal ground in introducing this bill, and we are on solid legal ground in passing it."

By Scott Eidler

scott.eidler@newsday.com@ScottEidler

Scott Eidler is a deputy editor for the towns department at Newsday. Scott has worked at Newsday since 2012 and previously covered municipal government and education.