A coalition of nine U.S. senators and 121 members of the U.S. House of Representatives, led by Rep. Becca Balint (D-Vermont), has filed an amicus brief urging the U.S. Supreme Court to strike down state laws in Idaho and West Virginia that bar transgender girls from participating on girls’ school sports teams. The brief was submitted in the consolidated cases involving plaintiffs Lindsay Hecox in Idaho and B.P.J. in West Virginia.
Vermont does not ban transgender participation in sports; quite the opposite. Mid-Vermont Christian School in Quechee was banned from participation in school sports competition when it refused to play a tournament game against a team with a biological male playing center on its basketball team. Mid-Vermont Christian has since prevailed in a lawsuit, and its rights to participate in Interscholastic sports have been restored.
As the Senate Pro Tem of the Vermont Senate, Balint was instrumental in passing the first state law about transgender students’ use of bathrooms. Act 127 took effect on July 1, 2018. All single-user bathrooms in public buildings or places of public accommodation shall be labeled “restroom” or “bathroom” and be made available for use by persons of any gender or who identify as neither gender. Since then, the use of bathrooms and locker rooms by transgender students has been a cultural and legal flashpoint nationally and in Vermont.
The lawmakers backing the brief filed this month, all Democrats, argue that categorical bans based on “reproductive biology” violate Title IX and the Equal Protection Clause and would harm both transgender and cisgender students. They cite several incidents in which cisgender girls were subjected to investigations or public accusations after being perceived as not looking “feminine enough.” The brief points to cases in Utah and Florida where student-athletes faced scrutiny of their physical characteristics under similar policies.
“Parents should be concerned by the idea that under these laws a school may investigate their child’s physical attributes,” the brief states, adding that no child should face questions about their body in order to participate in school athletics.
The lawmakers also contend that categorical bans prevent transgender students from receiving the educational and social benefits associated with school sports. They cite testimony from young athletes describing friendships, confidence, and a sense of belonging gained from playing on school teams. The brief argues that bans applying equally to kindergartners and college athletes are overly broad and not substantially related to any legitimate government objective.
Supporters of such bans, including officials in Idaho and West Virginia, maintain that separating teams by sex assigned at birth is necessary to preserve fairness and competitive balance in girls’ and women’s sports. They argue that allowing transgender girls to compete could disadvantage cisgender athletes in certain sports.
The brief also highlights multiple attempts in recent years to amend Title IX to define eligibility according to “reproductive biology.” All have failed in Congress, which the authors say underscores that the existing law does not support categorical exclusions of transgender students. Women’s rights and civil rights organizations warned Congress that such changes could require schools to adopt invasive sex-verification procedures and could subject girls to harassment.
Although the signatories are Democrats, the brief notes that some Republican governors have previously vetoed similar legislation in their states, citing lack of evidence that fairness issues exist in school sports and concerns about discrimination.
The Supreme Court is expected to hear arguments later in the term and could issue a ruling that shapes how schools nationwide determine athletic eligibility for transgender students.