Litigation as Transphobic Theater

Bruce Blakeman is the County Executive for Nassau County (on Long Island). Last month, he issued an executive order barring transgender girls and women from competing in girls’ and womens’ sports at Nassau County facilities. New York State Attorney General Letitia James then sent Blakeman a cease-and-desist letter on the ground that the executive order violates state law. She is clearly right about that. For example, one of the provisions AG James cited is a state civil rights statute that provides, as relevant here: "No person shall, because of  . . .  gender identity or expression . . .  be subjected to any discrimination in his or her civil rights . . . by the state or any agency or subdivision of the state."

To my knowledge, Blakeman does not deny that his executive order violates state law. However, he believes he is nonetheless entitled to enforce it because he thinks the state law discriminates based on sex in violation of the federal Constitution and federal Title IX. That contention is not just wrong but outrageously wrong. Blakeman is not merely saying that federal constitutional and statutory antidiscrimination law permit anti-trans discrimination. He contends that federal law requires such discrimination.

That's preposterous. In Bostock v. Clayton County, the Supreme Court concluded that Title VII forbids anti-trans discrimination in employment. The Court left open the possibility that Title VII and other sex discrimination prohibitions might permit anti-trans discrimination in other contexts, but added that its ruling did "not purport to address bathrooms, locker rooms, or anything else of the kind." So even though Title IX closely parallels Title VII, it's possible that in a future case the Court could hold, consistent with Bostock's disclaimer, that Title IX permits anti-trans discrimination in some contexts, perhaps including girls' and women's sports.

The Bostock dissenters worried that the logic of the majority's ruling would forbid anti-trans discrimination in girls' and women's sports. But notably, no one in Bostock--certainly not the majority and not even the dissent--so much as hinted at the extreme position asserted by Nassau County Executive Blakeman and his team of anti-woke warrior-lawyers: that Title IX and equal protection require anti-trans discrimination.

Wait. It gets worse. Blakeman chose to express his ill-founded disagreement with New York State law by suing the Attorney General in federal court. In addition to the absurdity of the underlying substantive view, there are multiple procedural difficulties with Blakeman's lawsuit. 

I'll begin with the sheer sloppiness of the complaint. In its final paragraph, the complaint asks the court for various remedies, including, unintentionally amusingly, "permanently enjoying the Defendants . . ." when it ought to have said "permanently enjoining." I for one enjoyed that error.

Slightly more substantively, the complaint contains one cause of action--for a declaratory judgment. Anybody who successfully completed a semester of law school would know that a declaratory judgment is a remedy, not a cause of action. A cause of action (actually called a "claim" in federal court) is a substantive legal basis for relief. Meanwhile, and confusingly, the complaint actually seeks both a declaratory judgment and an injunction, so even if the complaint's authors thought that a declaratory judgment were a cause of action, they ought to have included a second cause of action for an injunction.

What causes of action might a minimally competent lawyer have included in the complaint? To answer that question, let's consider the parties. The complaint lists as plaintiffs County Executive Blakeman, a sixteen-year-old cisgender female volleyball player, and her father. The one who comes closest to having a claim is the volleyball player.

Based on the complaint's allegations (which are supported almost entirely by footnotes that provide links to news reports about events in other states), it appears that the volleyball player is concerned that: (a) she might some day find herself in the same locker room as a transgender girl, which would make her uncomfortable; (b) allowing transgender girls to compete against her is unfair because of assumed performance differences attributable to chromosomal differences; and (c) a transgender girl might hit a volleyball so hard as to injure her (yes, the complaint actually says that). These factual allegations are invoked in ostensible support for the claim that state law, by allowing transgender girls to compete with cisgender girls, violates the federal Fourteenth Amendment's Equal Protection Clause and Title IX.

As I noted, that substantive argument is ridiculous, but even if it were plausible, the plaintiff would still need a cause of action. Leaving all of the low-hanging fruit on the tree, the crackerjack attorneys hired by Nassau County don't name any, even though, at least with respect to the volleyball player, they could have easily done so. For her equal protection claim, the volleyball player could have relied on 42 U.S.C. § 1983 as well as the doctrine of Ex Parte Young. For the Title IX claim, she (and her lawyers) could have cited the implied private right of action recognized in Cannon v. University of Chicago. Maybe if those lawyers read or otherwise learn of this blog post, they'll amend their complaint to do so--right after they learn the difference between a remedy and a cause of action. If so, you're welcome.

Why am I offering free advice to the lawyers engaged in this transphobic enterprise? For one thing, because, as noted above, they're going to lose on the merits, given the absurdity of their position. For another, because even if the complaint were amended to state a claim, the volleyball player and her father would be tossed for lack of standing or, what amounts to the same thing in this context, ripeness.

Nowhere does the complaint allege that the volleyball player faces any imminent risk of the harms alleged. It says that "the threats described are not conjecture or speculation," but the only examples are, as noted above, taken from tendentious news reports, such as this National Review story reporting on testimony before the North Carolina legislature. One can feel bad for anyone seriously injured playing volleyball, but given the overall rate of volleyball injuries, the sixteen-year-old would have a much easier time establishing standing to enjoin all volleyball rather than demonstrating a substantial risk of the harms alleged to arise based on the possibility of occasionally having to play volleyball with or against transgender girl.

If the volleyball player and/or her father had legal standing, then--pursuant to the "one plaintiff rule" (which you can read all about in this excellent forthcoming article by Professor Riley Keenan)--County Executive Blakeman could also join in, even if he lacks standing or his own valid claim. But because the volleyball player and her father almost certainly have not done enough to establish a ripe case or controversy, Blakeman needs to come up with his own legal claim and standing. The complaint does not indicate how its authors think he can do so (or even that they are aware that he needs to.)

There is reason to think that Blakeman lacks a cause of action. He can't bring a § 1983 action, because his rights under Title IX and equal protection have not been violated--even under the ridiculous assumption that failure to discriminate against transgender athletes violates federal law. It's possible that Blakeman could bring an Ex Parte Young action against the Attorney General, but I've never heard of a local government official doing that. I did enough legal research to persuade myself that if it has happened before, it's very rare.

For readers unfamiliar with the idea, Ex Parte Young stands for two propositions: (1) that state sovereign immunity bars private lawsuits for money damages but does not bar private lawsuits against a state official for prospective injunctive relief; and (2) that, as the Supreme Court acknowledged in Armstrong v. Exceptional Child Center, Inc., there exists a judge-made equitable cause of action to enjoin state officials from violating federal law. Proposition (1) has no bearing on a case like the County Executive's suit, but proposition (2) arguably does.

But even if Blakeman has an Ex Parte Young action in theory, in practice that's blocked by state law. The New York Court of Appeals (the state's highest court) has expressed the view that local governments "and their officers lack capacity to mount constitutional challenges to acts of the State and State legislation." And because capacity to speak for the state in federal court turns on how the state carves up its own authority (as the Supreme Court held in this 2019 case), that incapacity would also appear to render a county executive unable to sue the state in federal court.

Given all of the foregoing substantive and procedural obstacles, it is impossible to escape the conclusion that the County Executive's lawsuit is simply transphobic theater, offered up as red meat to the most carnivorous members of the Republican Party base on Long Island. Had it been filed in federal district court in Amarillo, Texas, perhaps it would have had a chance. But if it is assigned to a judge who follows the law, it should be dismissed.