The Trump administration has filed court papers supporting an Idaho law that bars transgender females from participating on girls’ or women’s school athletic teams, arguing that “biological males” who identify as transgender are seeking “special treatment” under the U.S. Constitution.
“Refusing to provide a special exemption for biological males if and only if they are transgender is hardly a denial of equal protection on the basis of sex, especially when such an exemption would harm biological females,” the U.S. Department of Justice wrote in its June 19 “statement of interest” in Hecox v. Little. The lawsuit that challenges the Fairness in Women’s Sports Act both under the 14th Amendment’s equal-protection clause and Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded educational programs.
The challenge to Idaho’s law was filed by the American Civil Liberties Union on behalf of Lindsay Hecox, a transgender track athlete at Boise State University, and an unidentifed student at Boise High School who is cisgender and concerned about being subjected to invasive “sex verification” testing under the new law, the suit says.
The Trump administration’s filing addresses only the equal-protection challenge to the Idaho law, not Title IX. The filing says that the U.S. Supreme Court’s recent decision in Bostock v. Clayton County, Ga., that federal employment-discrimination law protects transgender employees (as well as gay and lesbian workers) does not “alter the equal-protection analysis here.”
“First, Bostock said nothing about and did not consider anything about the Constitution,” the Justice Department filing says. “Second, nothing in the Fairness Act discriminates on the basis of transgender status, so even assuming arguendo that Bostock had any relevance in a constitutional case, it would not help plaintiffs.”
In his dissent in Bostock, Justice Samuel A. Alito Jr. argued that the majority’s decision in support of LGBTQ employees may extend to girls’ and women’s sports under Title IX.
“The effect of the court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male,” Alito wrote.
He cited the pending challenge to Idaho’s law as well as a pending case in which several cisgender female athletes challenge a decision by Connecticut’s school athletics authority to allow transgender female athletes to compete in the girls’ category in high school track.
In its filing in the Hecox case, the Trump administration argues that the Idaho statute is consistent with the U.S. Constitution because “the equal-protection clause does not prohibit states from generally requiring separate athletic teams for biological females and biological males.”
The Justice Department argues that this position is supported by a series of rulings in the 1980s by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, which upheld the exclusion of boys from a girls team, such as volleyball when there was no boys team, even though girls were permitted to play on boys’ athletic teams.
The 9th Circuit court held in those decisions that “promoting equality of athletic opportunity between the sexes is an important governmental interest,” the Justice Department said. Idaho is part of the 9th Circuit.
The Trump administration filing also seeks to counter arguments raised by the challengers to the Idaho law, such as that the premise that transgender females (or “biological males,” as the filing calls them) are physically superior to cisgender girls is a paternalistic sex stereotype. The administration says the 9th Circuit has recognized that “the physiological fact that males would have an undue advantage competing against women.”
The administration filing concludes by saying, “In sum, the Fairness Act neither bars transgender athletes from competing in school athletics nor draws distinctions based on transgender status or gender identity. Instead, it draws distinctions solely based on biological sex, restricting all biological males from participating on athletic teams designated for biological females.”
Chase Strangio, the deputy director for Trans Justice at the ACLU’s LGBT & HIV Project, was critical of the Trump administration’s filing.
“The arguments that have been used by anti-trans advocates for years are now being used by the United States government,” Strangio said in a statement. “Trans women are women—including our client Lindsay. ... Discrimination against women—including women who are trans—is discrimination.”
The ACLU has filed a motion for a preliminary injunction to block the law from taking effect, which is pending before a federal district judge.
A version of this news article first appeared in The School Law Blog.