Washington Update

Court Ruling Favoring Transgender Students May Impact College Athletics

August 21, 2020

In the wake of the Supreme Court’s ruling that lesbian, gay, bisexual and transgender (LGBT) individuals are protected under a federal employment discrimination law, a federal district court has temporarily blocked an Idaho state law that prohibits transgender female students from participating on sports teams that match their gender identity.

The injunction in Hecox v. Little is the first federal court ruling to apply the Supreme Court’s decision in Bostock v. Clayton County beyond the employment context to high school and college athletics. As anticipated, the court’s ruling relied in part on the logic of the Supreme Court’s decision to find that the plaintiffs had demonstrated that the Idaho law was likely to be found unconstitutional. Citing Bostock, the Idaho court noted that “’it is impossible to discriminate against a person for being transgender without discriminating against that individual based on sex.’”

Although the Idaho ruling involves constitutional claims not applicable to private colleges and universities, the case is likely to influence courts considering similar claims under Title IX. It is important to note, however, that the ruling does not foreclose all limitations on transgender female athletes’ participation in women’s sports.

As the court observed, “Idaho is the first and only state to categorically bar the participation of transgender women in women’s student athletics. This categorical bar to girls and women who are transgender stands in stark contrast to the policies of elite athletic bodies that regulate sports both nationally and globally—including the National Collegiate Athletic Association ("NCAA") and the International Olympic Committee ("IOC")—which allow transgender women to participate on female sports teams once certain specific criteria are met.”

It is important to note that policies permitting transgender female athletes to participate in women’s sports have also come under legal challenge. For example, at least one organization has filed both a lawsuit and a complaint with the Department of Education alleging that allowing transgender high school athletes in Connecticut to participate in women’s sports violates the rights of female athletes under Title IX. Although the Education Department has filed a statement with the court in support of the plaintiffs and has indicated it intends to take enforcement action, the court in Hecox v. Little indicated that the Education Department’s statement is “of questionable validity given the Supreme Court’s recent holding in Bostock.”

In light of these developments, college and university presidents should be aware that similar legal challenges involving athletics may arise in their jurisdictions.

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