A statewide ballot measure to bar transgender girls from girls school sports will almost certainly face a legal challenge if approved by voters next week, legal experts say.
In that event, as the ballot measure winds its way through the courts it could undermine state laws that have broadly prohibited discrimination based on gender identity and gender expression for two decades, opponents of the initiative say.
The measure at the center of the conversation is Initiative 638, also known as the “Defending Equity in Interscholastic Sports Act.” If enacted, I-638 would block transgender girls from competing in competitive team sports or individual events “intended for female students only” at public and some private K-12 schools. It would not impact boys school sports.
Six attorneys and a ballot initiative expert who spoke with The Seattle Times presented a range of potential scenarios if voters approve I-638: Some said that a court could declare the initiative invalid for violating the state constitution. Others said a court could allow the ballot measure to stand, a move that could open the door to rewriting other aspects of state antidiscrimination protections.
“If (I-638) passes, I fully expect that it will be challenged in the courts as violating the Washington Law Against Discrimination and some of the constitutional protections that Washington really has strengthened at the state level that are no longer available at the federal level,” said Kelli Rodriguez, an attorney and the director of the sports law program at the Seattle University School of Law.
The conservative political committee behind the measure, Let’s Go Washington, said I-638 does not aim to overwrite all state protections for transgender people — just those related to girls school sports.
Let’s Go Washington Executive Director Darren Littell said I-638 is narrowly tailored to school sports and would amend the policies of Washington’s high school athletics association.
He added that the measure would not conflict with existing state laws and policies that protect transgender people in other arenas, citing a recent U.S. Supreme Court ruling that determined states are permitted to ban transgender athletes from girls and women's school sports.
“This may update laws, and that’s the whole point of the initiative: is to update the laws,” Littell said. “Is it constitutional? Yeah, it's constitutional.”
Washington’s existing antidiscrimination protections
Washington state has a particularly strong network of state laws and policies that protect transgender people and students, said Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, which researches and promotes progressive ballot measures across the U.S.
Chiefly, the Washington Law Against Discrimination — the state’s broad antidiscrimination statute — prohibits discrimination based on sex, gender identity and gender expression in several settings, including in schools.
Public school students have other antidiscrimination protections established by the Office of Superintendent of Public Instruction, the state’s education agency. These students, for example, have the right to use new pronouns and to go by a preferred name.
And since 2007, the state’s high school athletics association has allowed transgender students to compete on the sports teams aligned with their gender identity. The Washington Interscholastic Activities Association was the first state high school athletics regulatory body in the country to adopt such a policy.
What could a legal challenge look like?
Legal experts said any court challenge against I-638 would likely hinge on whether the measure conflicts with the state constitution or Washington Law Against Discrimination.
The scope of a legal challenge would depend on the kinds of plaintiffs filing said challenge, and the specific court where such a challenge was filed, said Seattle University’s Rodriguez. Those plaintiffs could be transgender girls blocked from playing girls athletics, she said.
The initiative, if passed, could be struck down under the state constitution’s Equal Rights Amendment, said Kai Smith, a partner at Pacifica Law Group, which is affiliated with the campaign opposing the initiative, No Hate in Washington State. I-638 may also run afoul of the state’s nondiscrimination law because it only applies to girls sports but not boys sports, he added.
“It prohibits transgender girls from participating in sports consistent with their gender identity, and there’s no comparable limitation that applies to students participating in boys’ athletics. So it’s an unequal burden,” Smith said. “It also violates the [state Equal Rights Amendment] because of the way that it also imposes a unique sex verification burden, again, only on participants of girls athletic programs.”
The Equal Rights Amendment to Washington's state constitution states that Equality of rights and responsibility under the law shall not be denied or abridged on account of sex.
Some experts also pointed to the right to privacy promised by the state constitution, which they argued I-638 violates because it requires all girls wanting to participate in girls athletics to submit a medical provider’s documentation of their “biological sex.”
Littell, of Let’s Go Washington, said he does not believe the initiative violates state antidiscrimination law. He pushed back on the idea that I-638 would discriminate against transgender girls, arguing instead that Washington’s current trans-inclusive athlete policies are discriminatory toward cisgender girls who have to compete against transgender girls.
Transgender girls would not be barred from playing sports altogether, he added, stating that they could still compete on boys teams.
“What we heard from the (U.S.) Supreme Court is that this is not discrimination, and the only people who are being discriminated against right now are women and girls who are being forced to do this,” Littell said.
That June Supreme Court ruling upheld similar laws passed by state legislators in Idaho and West Virginia, neither of which have robust statewide protections for transgender people as Washington does.
Ripple effects
Some legal experts said that, if passed, I-638 could go beyond simply amending trans-inclusive school sports policies.
Adrien Leavitt, an attorney with the ACLU of Washington — which supports the No Hate in Washington State campaign opposing I-638 — said the initiative does not make clear to voters that approving the measure would change the state’s existing antidiscrimination laws.
“It just looks like this law that’s about school sports, right?” Leavitt said. “But what it doesn’t tell you is it actually impacts other existing antidiscrimination laws.”
Other attorneys, however, said that I-638’s changes would be limited to school sports.
Collins Saint, a Seattle education and civil rights attorney, said if I-638 were to pass and then be challenged under the state's nondiscrimination law, he would expect a court to limit the initiative's impact to girls' sports. “I would not expect (I-638) to change anything else about how trans girls get to participate at school, bathrooms, names, pronouns, uniforms, whatever it is,” he said.He added that I-638 may conflict with the state Constitution.
But Washington’s strong state-level protections for transgender people could set up a uniquely high-stakes conflict with the initiative if passed, several experts said.
“This potential initiative and the fight over it could … drastically change the legal landscape for the better or worse, depending on which side you're on,” said Colin McHugh, an attorney in Vancouver, Wash., who focuses on employment discrimination.
Rodriguez, the sports law attorney, said a legal challenge could result in the courts creating a “carve out,” under which state law would still ban discrimination against transgender people in public accommodations — except when it comes to school sports.
That “carve out” could potentially pave the way for additional exceptions in the state’s broad antidiscrimination law, Rodriguez said.
Attorney Kara Dansky also said that the initiative would amend relevant state laws but be limited to the arena of “female-only sports and spaces” in schools.
Dansky is a board member of Democrats for an Informed Approach to Gender, a national coalition of liberal voters who push back against the Democratic Party’s support of transgender inclusion, according to the group’s website. The group has endorsed I-638.
“It would amend certain Washington state laws that concern discrimination,” Dansky said. “Specifically, (I-638) would amend state laws that prohibit discrimination on the basis of gender identity or gender expression in order to protect women and girls as a sex class.”
What’s next
If I-638 faces a legal challenge, Washington’s attorney general would be required to defend the legality of the initiative in court, said spokesperson Ashley Gross, as is typical of the office’s obligations for successful ballot initiatives under Washington state law.
“Courts will attempt to harmonize any perceived conflicts between statutes, if possible,” Gross said. “If the initiative conflicts with the State Constitution, the Constitution will prevail.”
The state’s high school athletics regulatory association and education agency both told The Times that, if voters approve I-638, each would need to review its policies on transgender student athletes.
Rodriguez said she’s unsure whether I-638’s passage could herald other changes to state antidiscrimination laws.
“The initiative itself, as it’s written, appears to be pretty specific to school sports,” Rodriguez said. “Whether the implication stays specific to school sports is a whole other question.”
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