“Gavin’s case has been very influential in the past and will continue to be so outside the 4th Circuit,” said Josh Block, senior counsel for the American Civil Liberties Union LGBTQ & HIV Project.
Mississippi, Montana, Florida, West Virginia, Tennessee, Arkansas and Alabama have all signed restrictions for trans athletes this year. Many of them advanced their laws blaming President Joe Biden’s January executive order that sought to promote the inclusion of transgender people. The White House made the switch, arguing that a Supreme Court ruling on LGBTQ workplace rights extends to a federal education law that prohibits discrimination based on sex.
Supreme Court has now looked at transgender toilet cases twice from landmark Bostock v. Clayton County decision last summer – the decision Biden relies on. And two other Circuits have made decisions similar to Circuit 4, saying it is unconstitutional to ban transgender students from using toilets that match their gender identity. This means that Grimm’s two 4th Circuit wins are likely to be valid for the foreseeable future. But a patchwork of courts will now decide whether these circuit court precedents impact trans athlete cases just as students begin to try their hand at fall sports.
“The question for the courts is: Do these attempts to ban trans children from sports teams have any better justification under increased scrutiny than laws prohibiting trans children from using the toilet?” Block said.
Here are three things to know about transgender sports restrictions:
There are three main legal challenges to watch out for
The ACLU and other civil rights groups have sued Idaho, West Virginia and Florida over laws banning transgender students from playing on women’s and women’s sports teams. The ACLU also pledged to file additional challenges against Florida and Tennessee.
“It’s not the Olympics, it’s kids just trying to live their childhood lives and play sports after school with their friends,” Block said.
All of the lawsuits argue that the laws are unconstitutional under the Equal Protection Clause of the 14th Amendment and in violation of Title IX, an education law that prohibits discrimination on the basis of sex.
Idaho: Idaho law is blocked by the 9th Circuit Court of Appeals. A ruling in that country could affect the fate of similar laws that other states have passed this year.
In March 2020, Idaho Governor Brad Little signed the Fairness in Women’s Sports Act, the country’s first law banning transgender women and girls from participating in school sports and requiring invasive testing if the gender of the ‘an athlete is involved. The law was quickly challenged by the ACLU on behalf of transgender athlete Lindsay Hecox, who tried out for the Boise State track team, and Jane Doe, a cisgender woman who worried about the medical tests she was carrying. she would have to undergo to prove that she is in fact not transgender. State law has also won support from the Trump administration in court.
Last summer, a district court ruled to temporarily suspend the law while proceedings were pending to allow Hecox to try out the team in the fall.
West Virginia: Mountain State is the second to defend its ban on transgender athletes in court. the ACLU filed a complaint on behalf of Becky Pepper-Jackson, 11, a rising transgender college girl who wants to try out for her school’s women’s cross country team. Team training starts this month, and state law comes into effect on July 8.
Florida: This week, the LGBTQ civil rights group Human Rights Campaign filed a lawsuit against Florida law, which Governor Ron DeSantis signed on June 1, on the first day of the pride month.
HRC filed the challenge on behalf of a 13-year-old transgender student using the pseudonym of Daisy, a multi-sport athlete who is about to start eighth grade and plays as a goalkeeper on three different soccer teams. Her lawyers argued that the law, which would ban her from playing on the women’s team, would be detrimental to her academic and social development while risking her privacy and security.
Also to watch: Alliance Defending Freedom, a conservative nonprofit, is suing the Connecticut high school athletic authority and five school boards over their policy that allows transgender students to participate in women’s sports teams. The group is suing on behalf of four cisgender female high school track and field athletes.
A district court judge dismissed the lawsuit in April, and ADF appealed the decision to the Second Circuit Court of Appeals.
“Courts across the country have consistently held that Title IX requires schools to treat transgender students in accordance with their gender identity,” wrote Robert Chatigny, senior judge for the U.S. District of Connecticut. “Every appellate court responsible for considering the matter has said so.”
Biden administration has supported students
In June, the Ministry of Education released a new interpretation of Title IX. The law now also includes a ban on discrimination based on sexual orientation and gender identity, a radical reversal from the Trump administration’s cancellation of Obama-era protections against discrimination for transgender people.
The interpretation is based on the Supreme Court ruling in Bostock v Clayton County. However, the opinion issued on transgender rights in the workplace specifically stated that it did not deal with rights to use toilets or changing rooms and that the Supreme Court has not yet taken up a case concerning these. challenges.
Biden’s Justice Department has previously acted to protect the rights of transgender girls to play on sports teams by declaring West Virginia law unconstitutional in its expression of interest in the Pepper-Jackson case.
Which government directive takes precedence?
As the battle for the rights of trans athletes brews at the local level, schools are caught between federal mandates and state laws.
“An important aspect is really what schools should do? Francisco Negron, legal director of the National School Boards Association, 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 cases their first order of business is to follow state law.
The Department of Education‘s Civil Rights Office is committed to “fully implementing” Title IX in programs and activities that receive federal funding from the agency. But it’s still unclear what steps the department will take to enforce Title IX in states that have passed laws prohibiting transgender women and girls from participating in sports teams that match their gender identities.
“A big problem for schools, if they don’t follow this as recipients of federal funds, do they risk losing one of those dollars?” Said Negron. “They’ve never really been remembered historically, but it’s a real possibility.”
Andrew Atterbury contributed to this report.