Donald Trump’s administration has, unsurprisingly, endorsed discrimination against transgender student athletes.
The Department of Justice Friday filed a “statement of interest” supporting Idaho’s recently passed Fairness in Women’s Sports Act, which bars transgender females from competing on girls’ and women’s teams at public schools and state colleges and universities. Two students, represented by the American Civil Liberties Union, Legal Voice, and a private law firm, have filed a federal lawsuit challenging the measure, saying it violates the U.S. Constitution’s Equal Protection Clause and that enforcement could involve subjecting students to invasive genital examinations. The DOJ filing came in relation to that suit.
“Allowing biological males to compete in all-female sports is fundamentally unfair to female athletes,” Attorney General William Barr said in a press release announcing the filing. “Under the Constitution, the Equal Protection Clause allows Idaho to recognize the physiological differences between the biological sexes in athletics. Because of these differences, the Fairness Act’s limiting of certain athletic teams to biological females provides equal protection. This limitation is based on the same exact interest that allows the creation of sex-specific athletic teams in the first place — namely, the goal of ensuring that biological females have equal athletic opportunities. Single-sex athletics is rooted in the reality of biological differences between the sexes and should stay rooted in objective biological fact.”
The law, which goes into effect in July, cited a study saying trans women and girls who have taken hormone therapy retain an “absolute advantage” over cisgender females and “will likely still have performance benefits,” and this is mentioned in a footnote in the DOJ’s filing. Some scientists as well as activists, however, say trans females do not have an inherent advantage and that many other factors, such as training, physical size, and more, can make a difference in an athlete’s performance.
The DOJ refers to trans females as “biological males” throughout the statement of interest. As a legal precedent to justify upholding the law, it cites a decision from the 1980s saying Arizona did not have to let a boy compete on a girls’ volleyball team when no volleyball team was offered for boys. “Nothing about an athlete’s transgender status requires a different result here,” the document states.
The DOJ contends that contrary to assertions in the Idaho lawsuit, in the Arizona case, “The Ninth Circuit specifically held that the exclusion of biological males from teams designated for biological females did not rest on ‘“archaic and overbroad generalizations,’ ‘sexual stereotypes,’ ‘invidious discrimination against women,’ ‘or stigmatization of women.’”
Ritchie Eppink, legal director for the ACLU of Idaho, told the Associated Press the DOJ’s arguments are anti-transgender and will not succeed in court. “The Trump administration has been attacking trans folks in the United States since basically inauguration day,” he said. “It’s not surprising they made this a part of their anti-trans agenda as well.”
The DOJ has filed a similar statement supporting Connecticut residents who have sued to prevent trans girls and women from competing with cisgender females in school sports. Another part of the administration, the Department of Education, has threatened to withhold federal funding from the Connecticut school districts with trans-inclusive policies.