Legal Challenges as State Trans Athlete Bans Approach

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Florida’s transgender athlete ban is scheduled to go into effect on July 1.

According to the South Florida Sun-Sentinel, the law is moving forward despite the U.S. Department of Education concluding earlier this month that Title IX protects transgender student-athletes from sex-based discrimination. However, Florida’s Fairness in Women’s Sports Act will ban transgender athletes from participating in girls’ and women’s sports by making female athletes’ eligibility for sports teams contingent on their biological sex.

Supporters of the Fairness in Women’s Sports Act say the law isn’t discriminatory because it doesn’t prevent transgender athletes from playing sports, just prevents them from playing on certain teams.

The Human Rights Campaign has said it will challenge the law. Arkansas, Mississippi, Montana, Tennessee and West Virginia have passed similar laws that are undergoing similar scrutiny, as the American Civil Liberties Union partnered with Lambda Legal to file suit against the West Virginia Board of Education.

Related: Ohio House Adds Transgender Sports Ban to NIL Bill

According to the Sun-Sentinel, University of Florida law professor Danaya C. Wright said that in order to successfully challenge the law, litigators must prove that requiring transgender athletes to play on boys’ teams is discrimination on the basis of sex. Similarly, they must show that banning transgender athletes from playing on girls’ teams limits their ability to get an education.

“There’s no question Title IX will trump any kind of state legislation on this issue,” Wright said. “If the state says all transgender students have to play on the boys’ team, or whatever rule they come up with — if that’s contrary to how Title IX is interpreted and applied, those should fail. Especially if the motive is bad, if it’s motivated by a desire to harm this group of people.”

“Some schools, especially in the states where there is legislation, will simply ignore what the federal government says,” Boston College politics professor R. Shep Melnick told the New York Times. “And then it becomes a question of whether the federal government wants to take enforcement action, which I think they may be somewhat reluctant to do.”

The Parkersburg News and Sentinel reported that the West Virginia transgender ban, which is scheduled to go into effect July 8, is being challenged in a federal lawsuit that led to responses from the West Virginia Attorney General’s Office, the state Board of Education and the Harrison County Board of Education.

West Virginia’s law, HB 3293, requires student-athletes in middle school through college to compete in sports that match their sex at the time of birth. The lawsuit was reportedly brought on behalf of an 11-year-old transgender girl who wanted to try out for the middle school cross-country team.

“Plaintiff is a biological male who has the undisputed opportunity to try out for the boys’ teams at Bridgeport Middle School,” West Virginia deputy attorney general Curtis Capehart said. â€śPlaintiff, however, wants to try out for the girls’ cross-country and track team because Plaintiff identifies as female. Because this would cause a biological male to unfairly compete against biological females, (HB 3293) bars Plaintiff from doing so. Plaintiff’s claim that this violates the Constitution and Title IX are unavailing.”

Attorneys for the Board of Education and Clayton Burch, the state superintendent of schools, say the preliminary injunction motion should be denied, arguing that the 11-year-old student has no standing to bring a case against the board because HB 3293 hasn’t gone into effect yet.

Related: DOE: Transgender Athletes Protected Under Title IX

Related: Louisiana Governor Vetoes Transgender Sports Ban

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