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A slate of transgender athlete restrictions taking hold this week in conservative states has snowballed into the highest-profile LGBTQ rights battle of the year, fueling a culture war conflict that will ripple through the courts for months.
New laws barring transgender girls and women from playing on teams that match their gender identity took effect Thursday in six states — statutes the Biden administration has openly challenged in court.
The state restrictions come just days after the Supreme Court declined to take up a challenge to a lower court ruling in favor of Gavin Grimm, a transgender man who sued his school district over its bathroom policy. The move was seen as a major victory for transgender students that could ricochet across the lower courts, where lawsuits against restrictions on athletes are moving up the system.
"Gavin's case has already been very influential and will continue to be so outside the 4th Circuit," said Josh Block, senior staff attorney with the American Civil Liberties Union LGBTQ & HIV Project.
Mississippi, Montana, Florida, West Virginia, Tennessee, Arkansas and Alabama all signed transgender athlete restrictions this year. Many of them advanced their laws blaming President Joe Biden’s January executive order that aimed to promote inclusion for transgender people. The White House made the change, arguing a Supreme Court ruling on LGBTQ rights in the workplace extends to a federal education law that prohibits discrimination based on sex.
The Supreme Court has now punted on transgender bathroom cases twice since the landmark Bostock v. Clayton County ruling last summer — the decision Biden is leaning on. And two other circuits have issued rulings similar to the 4th Circuit, saying it is unconstitutional to bar transgender students from using the bathrooms that align with their gender identities. That means Grimm’s two victories in the 4th Circuit will likely hold for the foreseeable future. But a patchwork of courts will now decide whether these circuit court precedents hold any bearing on transgender athletes cases just as students start trying out for fall sports.
"The question for the courts is: Do these attempts to ban trans kids from sports teams have any better justification under heightened scrutiny than laws banning trans kids from using the restrooms?" Block said.
Here are three things to know about transgender sports restrictions:
There are three key state law challenges to follow closely
The ACLU and other civil rights groups have filed lawsuits against Idaho, West Virginia and Florida over laws that bar transgender students from playing on women and girls sports teams. The ACLU has also vowed to file additional challenges against Florida and Tennessee.
“This isn't the Olympics, this is kids just trying to live their lives as kids and play after-school sports with their friends,” Block said.
All of the lawsuits argue that the laws are unconstitutional under the 14th Amendment’s equal protection clause and in violation of Title IX, an education law that prohibits sex-based discrimination.
Idaho: Idaho's law is stuck in the 9th Circuit Court of Appeals. A ruling there could have bearing on the fate of similar laws other states have passed this year.
In March 2020, Idaho Gov. Brad Little signed the “Fairness in Women’s Sports Act,” the first law in the nation to ban transgender women and girls from participating in school sports and requires invasive testing if an athlete’s sex is in question. The law was quickly challenged by the ACLU on behalf of transgender track athlete Lindsay Hecox, who tried out for the Boise State track team, and Jane Doe, a cisgender woman who was concerned about the medical testing she would need to undergo to prove she is in fact not transgender. The state law also earned the backing of the Trump administration in the courts.
Last summer, a district court ruled to temporarily pause the law while proceedings were underway to allow Hecox to try out for the team in the fall.
West Virginia: The Mountain State is the second to defend its transgender athlete ban in court. The ACLU filed a lawsuit on behalf of 11-year-old Becky Pepper-Jackson, a rising transgender middle schooler who wants to try out for her school's girls’ cross-country team. Team practices start this month, and the state law takes effect July 8.
HRC filed the challenge on behalf of a 13-year-old transgender student using the pseudonym Daisy, a multisport athlete who is about to start eighth grade and plays as a goalie on three different soccer teams. Her attorneys argued the law, which would prohibit her from playing on the girls team, would be detrimental to her academic and social development while risking her personal privacy and safety.
Also worth watching: Alliance Defending Freedom, a conservative nonprofit, is suing Connecticut’s high school sports authority and five school boards over their policy that allows transgender students to participate on women’s sports teams. The group is suing on behalf of four cisgender female high school track athletes.
A district court judge dismissed the lawsuit in April and ADF has appealed the decision to the 2nd Circuit Court of Appeals.
“Courts across the country have consistently held that Title IX requires schools to treat transgender students consistent with their gender identity,” wrote Robert Chatigny, a U.S. District of Connecticut senior judge. “Every Court of Appeals to consider the issue has so held.”
The Biden administration has thrown support behind the students
In June, the Education Department issued a new interpretation of Title IX. Now, the law also includes prohibiting discrimination based on sexual orientation and gender identity, a sweeping reversal from the Trump administration's rescission of Obama-era discrimination protections for transgender people.
The interpretation is based on the Supreme Court ruling in Bostock v. Clayton County. However, the opinion issued about transgender rights in the workplace specifically said it did not address rights to use bathrooms or locker rooms and the Supreme Court has yet to take up a case over these challenges.
The Biden Justice Department has already moved to protect transgender girls’ rights to play on sports teams by blasting the West Virginia law as unconstitutional in its statement of interest in Pepper-Jackson’s case.
Which government directive takes precedent?
As the battle over transgender athlete rights brews at the local level, schools are caught between federal mandates and state laws.
“An important aspect is really what are schools to do?” Francisco Negron, the National School Boards Association’s chief legal officer, said this week at an Education Writers Association roundtable. “You have competing statutory and constitutional mandates. Keep in mind that schools are creatures of state law, and in many instances their first order of business is to follow state law.”
The Education Department’s Office for Civil Rights has vowed to “fully enforce” Title IX in programs and activities that receive federal financial assistance from the agency. But, it is still unclear what actions the department will take to enforce Title IX in states that have passed laws to ban transgender women and girls from participating on sports teams that match their gender identity.
“A big issue for schools there is, if they don't follow that as federal fund recipients, do they stand to lose any of those dollars?” Negron said. “They have never really been withheld historically, but it is a real possibility.”
Andrew Atterbury contributed to this report.