DOJ Defends Idaho’s Ban on Transgender Athletes From Competing in Women’s Sports

The Justice Department building on a foggy morning in Washington, on Dec. 9, 2019. Samuel Corum/Getty Images

The Justice Department (DOJ) has defended an Idaho law that bars biological males from competing in all-women sports, arguing that the U.S. Constitution allows the state to recognize the physiological differences between the biological sexes in sports.

Idaho in March became the first state to sign a law—Fairness in Women’s Sports Act (Fairness Act)—that prevents biological males from participating in women’s sports that are affiliated with the state’s public school and higher education systems. The law, which goes into effect in July, effectively bans transgender girls and women from competing in women’s sports and has drawn criticism from LGBT and civil rights advocacy groups.

The law’s passage prompted a transgender athlete, represented by the American Civil Liberties Union and Legal Voice, to sue the state governor, Brad Little, and other officials (pdf), arguing that the law “impermissibly discriminates on the basis of sex and transgender status and invades fundamental privacy rights.” Joining her in the lawsuit is a biological female who worries that competitors might decide to “dispute” her gender in order to keep her from playing soccer.

One of the athletes’ argument is that the law violates the Constitution’s Equal Protection Clause because it singles out individuals who depart from sex stereotypes, transgender people, and intersex people for discriminatory treatment, according to their lawsuit.

“We’re suing because HB 500 illegally targets women and girls who are transgender and intersex and subjects all female athletes to the possibility of invasive genital and genetic screenings,” Gabriel Arkles, senior staff attorney with the American Civil Liberties Union, said in a statement at the time the lawsuit was filed. “In Idaho and around the country, transgender people of all ages have been participating in sports consistent with their gender identity for years. Inclusive teams support all athletes and encourage participation—this should be the standard for all school sports.”

In a statement of interest on Friday, the DOJ disagreed with the athlete’s argument on the equal protection clause, arguing that the state does not need to abandon its efforts to protect biological women with equal opportunity to compete and participate in school athletics in order to accommodate the team preferences of transgender athletes.

“The Equal Protection Clause allows Idaho to recognize the average physiological differences between the biological sexes in athletics,” the department wrote (pdf). “Because of these differences, the Fairness Act’s limiting of certain athletic teams to biological females provides equal protection because the limitation is based on the same exact interest that allows the creation of sex-segregated athletic teams in the first place—namely, the goal of ensuring that biological females have equal athletic opportunities.”

The department also pointed out that providing transgender women and girls a special exemption to participate in women sports would in fact require the state to discriminate against straight biological males.

“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. Rather, Plaintiffs’ requested special exemption would actually require Idaho to engage in discrimination on the basis of gender identity, by compelling the State to discriminate against biological males whose gender identity reflects their biological sex,” the department wrote.

“Allowing biological males to compete in all-female sports is fundamentally unfair to female athletes,” Attorney General William Barr said in a statement.

The Idaho Attorney General office declined to comment on the statement of interest because of the pending litigation.

Chase Strangio, an attorney with the ACLU, said in a statement to The Epoch Times that the U.S. government is using an argument used by anti-trans advocates for years.

“Discrimination against women—including women who are trans—is discrimination. DOJ’s arguments will fail here just as DOJ lost its defense of anti-transgender discrimination this week in the Supreme Court,” Strangio said.

This statement of interest comes follows a Supreme Court ruling that extends Title VII’s protections to gay and transgender employees, by making it illegal to discriminate based on sexual orientation and gender identity.

The DOJ said in its filing that the Supreme Court’s recent decision does not alter its argument on the equal protection clause because the top court cases did not consider anything about the Constitution and that the Fairness Act does not discriminate on the basis of transgender status.

“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,” the DOJ said.