By: LJSJ Staff
Though many will remember 2021 as a year defined by the on-going coronavirus pandemic, this past year claimed another unfortunate distinction. According to the Human Rights Campaign, 2021 represented one of the worst years for LGBTQ+ people at the state legislative level. More than 250 bills taking aim at the civil rights of LGBTQ+ people were introduced, and seventeen were signed into law. A majority of these bills were targeted at restricting the rights of transgender people (at least seven more bills targeting transgender people specifically were in the early days of this year).
Among those laws introduced and passed, the most popular area of legislative focus has been collegiate and high school sports. As of now, ten states have put some restriction in place to prevent transgender students from participating on sports teams that align with their gender identity. Nine of those states have done so by legislation (all but one of the laws were enacted in 2021), and one state (South Dakota) has done so via a governor’s executive order.
Purportedly, these laws are being advanced under the guise of “protecting” women’s and girl’s athletics (Idaho’s law was named the “Fairness in Women’s Sports Act”). Many lawmakers have peddled a fear that transgender women and girls have an overwhelming and unfair biological advantage over their cisgender competitors. However. there is good reason to believe that such fears are, at best, overstated. While the scientific research on transgender athletes is sparse and complex, there is no indication that transgender women/girls will unilaterally dominate women’s sports. Transgender competitors have been able to compete in the NCAA and the Olympics for years without upending competitive balance.
Even setting aside the lack of scientific basis for these laws, that they have become such a defining legislative focus is, at best, bizarre. There is no official count of how many transgender student athletes there are at the collegiate or high school level, but it is likely small. Moreover, this issue ranks dead last on the priority list of many voters, even in states that are not traditionally liberal. Even more striking, lawmakers sponsoring these bills were unable to specifically cite any instances of transgender athletes competing in their state. Others have pointed to a pair of transgender athletes in Connecticut, one of whom was ultimately defeated by a cisgender competitor. That these laws (and proposed laws) lack scientific, anecdotal, or political basis suggest that the true motivation—along with other anti-trans legislation—is to delegitimize the gender identity of transgender individuals.
Though states have been enthusiastic to keep transgender students off the field, courts have already indicated a hesitance to embrace the legislative thrust. Due to the fact that these laws have all been enacted within the past year, this is still a relatively unexplored topic at the judicial level. So far two district courts have heard cases asking them to issue preliminary injunctions against such laws. Both of those courts have issued those injunctions and have found that the laws have a high likelihood of being unconstitutional, specifically under the Equal Protection Clause of the Fourteenth Amendment.
The first case came from a federal district court in Idaho in 2020. In Hecox v. Little, the court determined that the law did in fact discriminate against transgender athletes, and that the appropriate test was whether the law (1) promotes an important government interest and (2) the means used by the law are substantially related thereto. The court noted that the interest in protecting competitive equity in women’s sports was a worthwhile goal, but that the state failed to show that barring transgender athletes would somehow achieve that goal. Notably, the court pointed to the facts that the research cited by the legislature supporting the law changed its conclusion after peer-review, and that one scientist had explicitly stated that her work had been misused/misapplied. The order granting a preliminary injunction is currently on appeal with the Ninth Circuit. In 2021, a separate district court in West Virginia held that the state’s similar ban was held to the same standard as in Hecox, and that the law should be enjoined for the same reason.
While these early victories for the ACLU and the transgender students they protect are promising, they are far from the final word. The Ninth Circuit heard oral argument on the injunction issued in Hecox back in May of last year, and their decision (for better or worse) could stand as the first constitutional analysis of these laws from a federal appellate court, which could in turn prove persuasive to other courts. What is less speculative is the harm these laws will impart on the transgender students. Even the publicity about such laws has negative mental health effects on LGBTQ+ youth. Denying transgender students the ability to compete in athletics robs them of the numerous benefits that come with athletic participation and further contributes to an environment that stigmatizes and marginalizes them.
Law Journal for Social Justice 