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In Briefs, DOJ, 14 States Back Idaho Transgender Law

Paul Steinbach

The attorneys general of 14 states have filed a brief supporting an Idaho law that bars transgender girls and women from playing on female high school and college sports teams.

The states of Alabama, Alaska, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Oklahoma, South Carolina, Texas and West Virginia signed onto the brief.

The “friend of the court” brief, which was written by the office of Nebraska attorney general Douglas Peterson, argues that states are legally allowed to draw distinctions based on sex and urges the U.S. Ninth Circuit Court of Appeals to reverse Idaho U.S. District Judge David Nye’s August injunction that bars enforcement of House Bill 500 while the case works its way through the courts.

“The act draws a straightforward distinction based on biological sex and prevents biological males (regardless of how they identify) from participating in women’s sports,” the brief says. “Because of the average physiologically based differences in speed and strength between males and females, the act is one effective way to ensure fairness in women’s sports and to preserve equal athletic opportunities for women. The Constitution allows states to use these kinds of ‘[s]ex classifications … to advance full development of the talent and capacities’ of women.”

As reported by the Idaho Falls Post Register, the American Civil Liberties Union and the progressive feminist group Legal Voice are suing to overturn the law. Also called the Fairness in Women’s Sports Act, the law passed this year and was supposed to take effect on July 1, but Nye barred its enforcement in August as the case works its way through the courts, writing in his order that the plaintiffs are “likely to succeed in establishing the act is unconstitutional as currently written.”

The Alliance Defending Freedom, a conservative Christian legal group that helped to write the bill, is asking the Ninth Circuit to overturn Nye’s injunction. The ADF has been involved in numerous cases across the country opposing policies that recognize gender identity and supporting ones that draw distinctions based on biological sex, including one pending in Connecticut to overturn a policy that lets transgender students compete on teams based on their gender identity.

The states’ brief is one of six friend-of-the-court briefs supporting the law filed with the Ninth Circuit on Friday. The others were from the Women's Liberation Front and the Women’s Human Rights Campaign, both of which are part of the minority of feminist groups that are critical of the concept of gender identity and support viewing women’s rights through the lens of biological sex; six women athletes and four doctors who support the law; and Idaho U.S. attorney Bart Davis. U.S. attorney general Bill Barr came out in favor of the law in June.

AllOnGeorgia reported Sunday that the Justice Department has filed a friend-of-the-court brief in the Ninth Circuit defending Idaho’s Fairness in Women’s Sports Act.

“The Fourteenth Amendment to the U.S. Constitution provides that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ Idaho’s Fairness in Women’s Sports Act complies fully with the U.S. Constitution because it protects all persons equally,” said assistant attorney general for the Civil Rights Division Eric Dreiband. “The Constitution does not require States to abandon their efforts to provide biological girls and women with equal opportunity to participate in and enjoy the life-long benefits that flow from interscholastic athletics. The Fairness in Women’s Sports Act protects equal athletic opportunities for girls and women and permits all persons fairly to participate in sports.”

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