Op-Ed: The Nassau Order Protecting Girl's Sports Should Not have been Struck Down

By Peter Clines

Earlier this year, Nassau County Executive Bruce Blakeman issued a groundbreaking document entitled “An Executive Order for Fairness for Women and Girls in Sports”. Applicable to County sports facilities, the order prohibited biological males from intruding upon athletic competitions reserved for women or girls.

But a badly misguided judicial decision recently struck down the order, on the grounds that it

supposedly overstepped the County Executive’s authority and violated the separation of powers in the County Charter. Respectfully, the Court could not have been more wrong,

In the eyes of the Court, the County Executive’s order encroached upon the authority of the Nassau County Legislature. “{R]ather than implementing a legislative policy,” the Court opined, the Executive Order “enacted a policy the Legislature never embraced.”

The Court, however, totally overlooked the purpose of the order. The County Executive was faithfully enforcing the County Legislature’s clearly expressed policy prohibiting gender

discrimination.

It cannot be reasonably denied that permitting biological males to compete in female sports has a discriminatory impact on women. It is a simple matter of human physiology and equal opportunity.

As collegiate swimmer Riley Gaines emphasized in her lawsuit against the NCAA, transgender eligibility policies “are not sex neutral in operation but disproportionally burden female athletes by reducing female competitive opportunities [and] forcing female athletes to compete against males in

sex-separated sports…”  Especially in sports involving physical contact such as basketball, soccer, lacrosse or football.

The Blakeman Executive Order provides female athletes with the physical safety and equal opportunity that entities such as the NCAA have denied them, by “maintaining fairness for women’s athletic opportunities” and creating a “safe environment” for female athletes.

The County Executive plays a vital role in making that anti-discrimination policy a reality. That is why the Nassau County Human Rights Commission is expressly empowered to investigate

complaints of gender discrimination and make reports and recommendations to the County Executive.

The County Executive, as the custodian of Nassau’s various public sports facilities, was doing nothing more than carrying out that legislative mandate when he issued his order. This is therefore not a situation where the County Executive has strayed so far beyond the limits of legislative policy that he is in fact contradicting it (as was the situation in one case cited by the Court, which involved a deputy mayor invoking an anti-discrimination law to justify a system of “benign discrimination” in the form of an affirmative action program). 

Despite the fact that the County Code establishes the legislative foundation for the order, the Court decision completely failed to acknowledge the Code's existence,

In my opinion, that was reversible error. Contrary to the Court's superficial view , the County Executive’s power to issue the order did not require legislation specifically “prohibiting biological males from participation in girls or women’s sports.” That prohibition is already encompassed in the  County code provisions outlawing gender discrimination.

The Legislature was not obligated to enumerate every instance of gender discrimination before

the County Executive could take action.

For the sake of ensuring equal opportunity for female athletes in Nassau County, I hope the appellate courts swiftly reverse the misguided lower court decision and restore the executive order.

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Peter Clines served as a Deputy Nassau County Attorney under former Nassau County Executive (now US Congressman) Thomas Suozzi; and for 12 years as Counsel to the Democratic Minority in the Nassau County Legislature.