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Less than a week after Washington voters approved a ban on transgender girls in K-12 girls’ sports, the measure may never get to take effect. That is because on Monday, a coalition of parents of trans and cis kids, the state’s major teachers union and statewide legal organizations filed a lawsuit to block the ban. The lawsuit, filed in King County Superior Court, where Seattle is located, is designed to stop Initiative 638 before it has a chance to go into effect on Dec. 3. The 27-page complaint argues that the measure violates four separate provisions of the Washington Constitution, and the organizations say they will seek emergency relief blocking the measure while the case is litigated.
“For nearly two decades, Washington has maintained separate sports teams for boys and girls and has allowed transgender students to participate on those teams… In schools across the state, the existing policy has fostered community and belonging and supported student safety. Initiative Measure No. 638 (“Initiative” or “I-638”) reverses that longstanding practice and violates the Washington Constitution in multiple ways. By subjecting all girls who want to play girls’ sports to a new and harmful sex-verification requirement that does not apply to students participating in boys’ sports, the Initiative infringes the privacy rights of girls, treats them unequally, and disrupts their educational opportunities. The Initiative also requires schools to discriminate against transgender girls by excluding them from girls’ sports,” says the lawsuit, filed last night.
The lawsuit is brought by parents of six girls, some transgender and some cisgender. One transgender girl is a 17-year-old who “has participated in girls’ sports for years,” and she is concerned that if the requirements go into effect, she will be outed as transgender to her peers. The other trans girl is only 11 years old and is worried about being subjected to examinations around her gender in order to play. Meanwhile, four of the girls are cisgender, all of whom, the lawsuit argues, would be discriminated against by being subjected to invasive exams just to play K-12 girls’ sports. These girls and their parents are being represented by the ACLU of Washington and Legal Voice, and are being joined by two organizations: TransFamilies and the Washington Education Association, which represents over 80,000 members and is the major teachers union in the state, and is being represented by Pacifca Law Group.
The complaint argues that the ballot measure, which passed November 3rd by a narrow margin, violates Washington’s state constitution in four separate ways. The first is the right to privacy: Washington state’s constitution says that “no person shall be disturbed in his private affairs.” “A student’s body, genes, and hormone levels are as private as anything can be,” the complaint reads, “and the Initiative makes disclosing that information the price of playing school sports.” And Washington has strong precedent around this: in 2008’s York v. Wahkiakum School District, every justice of the Washington Supreme Court voted to strike down mandatory random drug testing of student athletes.
The second claim in the complaint is about equality under the law. Washington has an Equal Rights Amendment that states “equality of rights and responsibility under the law shall not be denied or abridged on account of sex,” and despite the U.S. Supreme Court’s refusal to extend equal protection to transgender athletes, Washington’s Supreme Court seems much more likely to grant transgender people such protection under the law. Likewise, the law clearly discriminates against transgender and cisgender girls more broadly when compared to boys: “No student who seeks to play boys’ sports must verify their sex,” reads the complaint.
The third way that the new measure would violate the Washington Constitution, the lawsuit says, involves the right to an education. “It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex,” reads the state constitution’s education clause, a sort of formalized constitutional analogue to Title IX. In the state of Washington, the lawsuit will be a major test of how this applies to transgender girls, cisgender girls and girls’ sports more broadly.
The last claim is one of the most clever, though. The lawsuit alleges that the ballot measure violates Article II, Section 37 of the Washington Constitution: “No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.” Washington has a law against discrimination that covers gender identity, as do a variety of other laws, and the lawsuit says the initiative amends those laws without spelling out the changes in full, rendering voters unaware of how the measure would impact existing state laws around gender identity and discrimination. If a judge agrees that the measure amended other laws around discrimination and education without showing voters those changes, the judge could rule the ballot measure was improperly drafted and therefore void even without ruling on the equality and privacy claims.
The case will now go to a judge in King County, with a request for emergency relief that the groups want decided before Dec. 3, when the law would otherwise take effect. Following that, it will almost certainly end up at the Washington Supreme Court, which has struck down voter-approved initiatives in the past, such as this September, when it threw out a natural gas initiative. Being passed by voters does not insulate a measure from judicial review. And because this case rests entirely on the state constitution, a ruling from the Washington Supreme Court would be final: the U.S. Supreme Court lets states interpret their own constitutions as they see fit…
Washington is the first state where one of this year’s anti-trans ballot measures has been challenged in court after passing, but it is not the only state that passed one. In Colorado, voters narrowly approved a sports ban and a surgery ban for transgender youth, and voters in Arizona and Nebraska passed measures of their own. None of those measures has been challenged in court since the election, though it is likely at least some will be, especially in a blue state like Colorado. Meanwhile, in Washington, more lawsuits may follow: on Monday, the Seattle School Board voted unanimously to authorize its superintendent to take legal action of its own. In the aftermath of an otherwise incredible election for transgender people, these measures have been a stain on progress. Now, everyone concerned with the state of transgender rights in America will keep their eyes on Washington’s courts to see whether some of that stain can be removed.
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