Hooters, Bratzilla, and New York’s Highest Ideals

The empire state just enshrined gender identity in its constitution. Two puerile disputes could shape what that means.

“People are weird about trans people playing sports.”

–Bratzilla (2024)

On November 6, New York voters approved a ballot proposition (“Prop 1”) to dump a truckload of redundant social justice verbiage into their state constitution. I say “redundant” because the concepts were already covered by other state laws. The measure’s backers called it “The Equal Rights Amendment.” It will go into effect on January 1, 2025.

While state leaders and activists sold Prop 1 to voters as an abortion-rights measure, it also slipped in “gender identity.” Here’s the anti-discrimination clause of the New York constitution with Prop 1 updates in bold:

“No person shall, because of race, color, ethnicity, national origin, age, disability, creed, religion, or sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive healthcare and autonomy, be subjected to any discrimination …”

New York is America’s most important liberal state (California is its most important himbo-occupied autonomous zone). Roughly half its residents live in or around New York City. While most blue states already feature gender identity in their anti-discrimination statutes, I believe New York is the first to embed this legal grenade in its founding document.

In this post I’ll explain what gender identity’s promotion from statute to constitution means to New Yorkers like me. Then I’ll introduce you to a breastaurant and a “special, unique, punk, alternative, super underground” adult roller derby league that may shape how the ERA is interpreted.

Did New Yorkers Mean to Do This?

We can’t infer that voters who supported Prop 1 wanted to protect transgender rights. 

New York has protected trans rights in some form since 1977, when a court first interpreted its sex discrimination law to ban anti-trans conduct. A bill to formally add “gender identity” to the statute started kicking around in 2003. In 2015, Governor Andrew Cuomo enacted a version of it in the form of an executive order. The bill became law in 2019.

I don’t think the public followed all this. Other than the 1977 case, anti-trans discrimination under New York law didn’t start making headlines until 2024 – more on those events in a minute.

In June 2022, the state legislature voted in favor of the ERA. This was the first step toward constitutionally-assured destruction. By law, the measure would have to pass the legislature again in a new session (a session is two years) and then gain the support of the electorate as a ballot proposition before going into effect.

This initial approval came just days after Dobbs dropped – the Supreme Court decision that allowed states to ban abortion. Everyone knew this cataclysm was on the way because it had been leaked almost two months prior. New York legislators emphasized the need to protect abortion with the ERA, which includes language banning discrimination against women for having an abortion. (New York’s electorate is solidly pro-choice.) But as with the gender identity provision, state law already covered this subject. It seems that lawmakers were looking to grandstand on abortion. 

They might have even believed gender identity was a winner. According to a New York Times story from July 2022, controversy over the ERA centered on the right of religious conservatives (a minority in New York) to refuse service to “LGBT” customers. The piece makes no mention of women’s sports, prisons, changing rooms …

The ERA was sent to the voters in November 2024 as Prop 1. Democrats and progressive activists spun it as an abortion-rights measure; Republicans and TERFs warned it would entitle boys to play girls’ sports. 

64% of New Yorkers support abortion rights. 62% voted for Prop 1.

The number of New Yorkers who support letting male high school athletes compete against girls: 

27%.

Apparently the Republican/TERF message on Prop 1 did not break through to voters.

What Is a Constitution?

The US Constitution lays out the structure of the federal government and enumerates Americans’ basic rights, like free speech and gun possession. States have constitutions, too, that cover similar ground. They can also reflect local priorities. Generally, constitutions are supposed to express a polity’s highest ideals of governance.

Constitutions are harder to amend than other parts of the legal code and take precedence over them when there’s a conflict. The hierarchy:

Federal constitution > federal statutes > state constitutions > state statutes

New York’s Constitution

State constitutions tend to be less elegant than their federal big brother. New York’s is about seven times as long and has been amended over 200 times.

Before Prop 1, New York’s equal protection clause – the passage that governs discrimination – tracked the federal one.

Federal:

“No State shall … deny to any person within its jurisdiction the equal protection of the laws.”

Thanks to Supreme Court interpretations, this provision applies to the federal government as well as to states, and it bars unequal treatment to people who are similarly situated. If a law treats people differently based on their race, religion, national origin, or skin color, courts must subject it to “strict scrutiny.” If the discrimination is based on sex then the law receives intermediate scrutiny.

New York’s constitution, pre-Prop 1:

“No person shall, because of race, color, creed or religion, be subjected to any discrimination …”

New York state courts interpret this provision to mean the same thing as the federal equal protection clause. Judges have described the two as “co-extensive,” “equal,” and “pari materia.” So while it is possible for a state constitution to grant more rights than the federal one, New York’s does not when it comes to discrimination.

Prop 1 throws a wrench in. State judges can no longer adopt federal equal-protection analysis wholesale. Can they keep applying intermediate scrutiny to sex discrimination claims, or do these claims (and all that they “include,” like gender identity) now have to receive strict scrutiny? Sex is defined to “include” gender identity but not, uh, sex — does that mean it’s OK to discriminate against people based on their gametes?

Gender identity’s graduation from statute to constitution doesn’t create any new grounds for lawsuits where there were none before. Nor does it increase the financial penalties for anyone found to have discriminated. 

But it makes one big change: gender identity will now be harder to oust from state law. We’ll be stuck with constitutionalized gender for at least a few years after everyone realizes it’s a magic trick.

The Two Gender Identity Discriminations

Some voters may have actually read Prop 1, seen “gender identity,” and voted Yes anyway. But what did they mean by Yes? Different things, probably, because the language of Prop 1 is ambiguous and the legal precedents (for the very few voters who might know them) are not definitive.

To interpret the new ERA, New York courts will presumably look to its older laws on the same subject.

New York’s 2019 Human Rights Law (HRL) bans discrimination on the basis of gender identity. Definitions:

“The term ‘gender identity or expression’ means a person's actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”

I’d argue that the HRL bans discrimination against trans people for believing they are the opposite sex – but does not mandate they be treated as though they are the opposite sex. In other words, you can’t fire your assistant because she told you she’s a man, but you don’t need to give her the key to the men’s restroom. Call it “Sex Belief Protection.”

Trans activists argue that trans people should be treated like members of the opposite sex. Call it “TWAW Protection.” (TWAW means “Trans Women Are Women.”) Their authority under New York law is scant. In the sports case I explain below, the plaintiffs’ brief only cites one appeals court precedent. It upholds a decision that turned on an employer’s aversion to people with Gender Identity Disorder. Sex Belief Protection, not TWAW Protection. Otherwise the brief cites three lowly trial court rulings. It also cites the guidelines of government agencies, but these can be overridden by courts.

Here’s a taste of one of the TWAW Protection rulings. It’s a 2013 decision out of (don’t smirk) Brooklyn:

“As our society evolves, the concept of gender is evolving from a ‘coercive binary regime’ toward a more fluid identification of one's gender, thus moving claims of gender identity disorder and any concomitant claims of disability into a realm of political unacceptability. But society is not there yet.”

Two cases are percolating through the state legal system that could solidify New York’s commitment to TWAW Protection – or smash it.

(Sidenote: Prop 1 contains a “Part B” that is meant to protect DEI initiatives from lawsuits by men and white people. It also states that no “characteristic listed in this section [shall] be interpreted to interfere with, limit, or deny the civil rights of any person based upon any other characteristic identified in this section.” I suppose this could be cited on behalf of women or religious people in the face of gender-identity demands, but I don’t know how courts would decide which way the interference ran. The full Part B is quoted and analyzed a bit here.)

The Right to Hoot

Brandy Livingston is a trans-identified man who wants to work as a waitress at his favorite restaurant, a Hooters outside Albany.

Hooters is a chain that implicitly promises its customers that they will be served food by women with large breasts. Its motto: Hooters Makes You Happy.

Livingston claims Hooters employees discriminated against him as a customer by misgendering him and remarking that they did not like him using the women’s restroom; and as a job applicant because they didn’t hire him and alluded to him presenting the wrong “image.”

Hooters claims Livingston sexually harassed its staff, talking to them about masturbation and proposing marriage. Apparently he’s a regular who’s been hanging around the premises since before his “recent” transition.

Livingston filed a complaint with the state’s Human Rights Division. It found that Hooters might have violated his rights under the HRL and granted him a hearing in September 2025. The hearing will be administrative – less formal than a court hearing, with simpler rules of evidence, so a Complainant like Livingston can manage without a lawyer. The state will assist him:

“The Division … has an interest in vindicating the human rights of New Yorkers, and, thus, a member of the Division staff will assist Complainants throughout the hearing process, free of charge.”

Hooters has been sued several times for discriminating against men who want to work there. Hooters argues that it’s entitled to favor women as food servers the same way a theater director might refuse to cast a man as Snow White – because the servers are “entertainers.” That said, Hooters has settled these lawsuits, which suggests it is not 1,000% confident in its legal position.

Anyway, it’s likely both sides will agree that anti-man discrimination is not at issue because Livingston is a woman.

If the Hooters staff whom Livingston allegedly harassed testify, he should lose the hiring discrimination claim. But what if they don’t show? They may have moved on from Hooters by next September; they may fear being tarred as transphobes. Then it could become a close call.

The misgendering and bathroom claim can only prevail under a theory of TWAW Protection. Hooters should argue Livingston is a man and it has no obligation to treat him otherwise. But will it?

My guess is Hooters will try to duck the issue by paying Livingston off before the hearing. But activists could encourage him to reject a settlement and offer him free legal representation. 

Either side might challenge a loss in the state’s Third Appellate Department, teeing it up to become a major statewide precedent about whether the law requires TWAW Protection or just Sex Belief Protection. 

Nassau County Rebels

Nassau County is a suburb of NYC that, unlike northern New Jersey and Westchester County, doesn’t contain any aging-hipster enclaves. What it lacks in bike lanes, it makes up for in public athletic facilities. It’s known for hosting high school state championships. This year, the local government added a step to the permitting process: teams must check a box indicating whether they are all-male, all-female, or mixed-sex. A player’s “sex” is determined by their original birth certificate.

The move attracted two lawsuits in July, both under the HRL. Both plaintiffs might amend their complaints after January 1 to add the new constitutional claim. One lawsuit, filed by the state, is pending; the state apparently did not seek a preliminary injunction and Nassau has not moved to dismiss the case.

The second lawsuit is more colorful. A Nassau-based “women’s” roller derby team, the Roller Rebels, claims the local law discriminates against it because it has a “transgender” member. The Rebels are represented by NYCLU, which is the ACLU’s local affiliate. 

Roller derby is a dangerous contact sport in which teams skate around roller rinks at top speed. Players in this league undergo extensive skills and safety training before they’re allowed to compete. But that doesn’t eliminate risk. "I have seen injuries caused by 5-foot women,” says a Roller Rebel named Catastrophic Danger. The Rebels’ website growls:

“Skate Fast. Hit Hard. Get Low.” 

The greater-NYC roller derby scene is broadly trans-inclusive, from what I’ve heard. It’s affiliated with the Women’s Flat Track Derby Association, which welcomes those who want to be welcomed:

“An individual who identifies as a trans woman, intersex woman, and/or gender expansive may skate with a WFTDA charter team if women’s flat track roller derby is the version and composition of roller derby with which they most closely identify.”

NYCLU helpfully depicts the Roller Rebels’ “punk” culture in a short documentary. I recommend watching the whole thing, but here’s the person you’re looking for:

I took that screengrab from the video. Less scrupulous media outlets than Bad Facts have run photos of the man in which he is doubled over (Hellgate, Reuters). (Please don’t make fun of people’s appearance in the comments. I’m pointing out this guy’s height because it’s a relevant, objectively-true fact.)

The league encourages players to adopt noms de rollerskate. The male Rebel calls himself Bratzilla:

“Bratz because I love Bratz dolls, and zilla because … I’m really tall.”

The Roller Rebels tried to immediately block Nassau’s law from going into effect (they sought a “preliminary injunction”), triggering a round of briefs. Although they are grown ups, they rely on studies of kids to defend Bratzilla’s right to play contact sports against women (citations omitted):

“Policies that exclude women and girls who are transgender from athletic competition for women and girls limit the benefits of athletics for all women and girls and discourage, rather than encourage, participation in athletics. Such policies also interfere with treatment for gender dysphoria, increase shame and stigma, and contribute to negative physical and emotional health outcomes.”

Nassau County argues the motion for a preliminary injunction is nonsense:

“There is no harm suffered by [the Roller Rebels] simply by having to check a box that indicates ‘co-ed’ league or team if they desire to have a transgender female play on a women’s team on Nassau County facilities. However, great harm will be suffered by women and girls if they are placed in the dangerous position of unknowingly competing against transgender females, who still possess the biological characteristics and anatomy of males, and are factually bigger, stronger, faster than they are.”

The Rebels claim this is about so much more than checking an accurate box. They cite gay and trans legal precedents from around the country to argue, in true punk fashion, that the law impermissibly hurts their feelings. Quotation marks omitted:

“Without an injunction the Roller Rebels—and transgender people across Nassau County—will suffer the cognizable and irreparable dignitary wounds associated with the passage of a law expressly designed to communicate the [government]’s moral disapproval of their identity …”

The judge is a youth sports coach affiliated with the conservative Federalist Society. He informed the parties he would decide the motion without oral argument. It was fully briefed by September 9 but there is no decision as of this writing. Apparently he doesn’t view Bratzilla’s dignitary wound as an emergency.

It’s possible the judge will feel that his hands are tied because gender identity laws can only be interpreted one way – to mean TWAW. As I explained above, he should instead read them as Sex Belief Protection. However he rules, the loser is bound to appeal to the state’s Second Department. The upshot may be that a band of zany adults ruins competitive sports for thousands of girls.

No matter. The zany adults have decided that sports shouldn’t be about competition. From NYCLU’s “commentary” on the Rebels:

“This is what sports should be about—challenging yourself to work harder, learning to communicate with your peers, and finding joy through movement.”

What Next?

The federal law governing school sports is Title IX. That statute doesn’t quite guarantee the right to fair competition for girls, or single-sex sports, even setting aside post-modern gender-y interpretations. Hopefully the federal government will clear up that mess in the next several years. A statutory amendment or new regulations under Title IX would bigfoot any weird interpretation of New York law that comes out of the Bratzilla lawsuit concerning school-sponsored athletics.

There are more ways the federal government could stomp all over New York’s fun. Employment law might be changed to guarantee some sort of right of female employees to private restrooms and changing rooms at work. Courts might strike down government pronoun mandates under free speech principles (which would liberate breastaurant waitresses to refer to lecherous male customers as men). PREA might be changed to boot men out of women’s prisons that receive federal funding.

But Bratzilla could still establish a precedent for how other gender identity claims are assessed under New York law, including its constitution. Likewise, a new doctrinal framework developed in Hooters v. Human Rights could prevail. Local trans rights lawyers like NYCLU would be wise to let that dispute fizzle out in a settlement – but they might swoop in and litigate it anyway. What’s the alternative, wait around for a trans case that has good facts?

I don’t think New York will carry on enforcing TWAW Protection for many years. Maybe after “gender identity” is exposed, a new generation of state legislators will move to amend the constitution again. Or maybe appellate judges will interpret the ERA to mean Sex Belief Protection.

A hundred years from now, law professors will pose a trivia question to their students: which state constitution contains jargon from the Great Sex Change Scandal?

No, not California…

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