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From left: Alabama AG Steve Marshall and Arkansas AG Tim Griffin
Twenty-six attorneys general have filed a friend-of-the-court brief urging the Supreme Court to do so.
Twenty-six Republican state attorneys general are urging the U.S. Supreme Court to uphold the anti-transgender sports laws in Idaho and West Virginia.
The AGs of Idaho and West Virginia have already asked the high court to review rulings that blocked them from enforcing their laws barring trans athletes from competing under their gender identity in school sports. The justices, who are in recess for the summer, haven’t said if they’ll take the case.
The AGs calling on the court to uphold the laws filed friend-of-the-court briefs, known formally as amicus curiae, August 14. Such briefs are filed by people and organizations that are not directly involved in a case but want to express an opinion on it.
The attorneys general of Alabama, Arkansas, Alaska, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming signed on to the Idaho brief, and the same ones, with the exception of West Virginia and the addition of Idaho, signed on to the West Virginia brief — that’s because Idaho and West Virginia, respectively, are the states directly involved.
They assert that such laws are needed to assure equal opportunities for cisgender girls and women in sports. “Amici States all have laws or policies like Idaho’s that restrict girls’ sports teams to biological females,” the Idaho brief reads. “Basing the distinction on biology rather than gender identity makes sense because it is the differences in biology — not gender identity — that call for separate teams in the first place: Whatever their gender identity, biological males are, on average, stronger and faster than biological females. If those average physical differences did not matter, there would be no need to segregate sports teams at all.”
“The Amici States all have laws and policies — like West Virginia’s Sports Act — that bar biological males from trying out for women’s and girls’ sports teams or competing in women’s and girls’ athletic competitions,” the West Virginia brief states. “Those laws reflect basic biology; they also reflect the fact that ignoring basic biology robs women and girls of an equal opportunity to compete for athletic accolades.”
However, many scientists and activists dispute that trans females have an inherent advantage over cis ones, and in any case, there is no widespread dominance of girls’ and women’s sports by trans athletes.
Arkansas AG Tim Griffin and Alabama AG Steve Marshall are the leaders in filing the briefs. “Like Arkansas, West Virginia has a strong interest in safeguarding the benefits of equal access to athletic opportunities for women and girls,” Griffin said in a press release. “They deserve the opportunity to shine on a level playing field. Biological males should not be robbing females of their opportunity to compete for athletic accolades or scholarships, nor should they be threatening the safety of women in competition. I will continue fighting to protect girls’ sports teams and the opportunities of female athletes.”
In Idaho, Lindsay Hecox, a trans woman track athlete at Boise State University, filed a suit challenging the state's law, the first in the nation, shortly after Republican Gov. Brad Little signed it in 2020, along with Kayden Hulquist, a then-senior at Boise High School who is cisgender and was concerned about being subjected to the law’s invasive “sex verification” testing. They are represented by the American Civil Liberties Union and its Idaho affiliate, Legal Voice, and Cooley LLP.
Idaho Chief U.S. District Court Judge David C. Nye issued an injunction blocking the ban in August 2020. He noted that it appears to be on shaky constitutional ground. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed his action in 2023.
In West Virginia, trans girl Becky Pepper-Jackson, then 11, filed suit challenging the law in 2021, represented by the ACLU, Lambda Legal, and a private law firm. U.S. District Judge Joseph R. Goodwin that year issued a preliminary injunction temporarily blocking enforcement of the law and said she could try out for girls’ sports, noting that the suit “seeks relief only insofar as this law applies to her.” Goodwin also wrote that Pepper-Jackson, who is on puberty-blocking drugs, “has shown that she will not have any inherent physical advantage over the girls she would compete against on the girls’ cross country and track teams. Further, permitting B.P.J. to participate on the girls’ teams would not take away athletic opportunities from other girls.”
New Hampshire is the latest state with an anti-trans sports law; Republican Gov. Chris Sununu signed it a month ago. It is already being challenged in court, with a federal lawsuit filed by two transgender girls, Parker Tirrell and Iris Turmelle. On August 19, Judge Landya McCafferty of the U.S. District Court of New Hampshire granted a temporary restraining order blocked enforcement of the law as it affects Tirrell, enabling her to practice with her soccer team, the New Hampshire Bulletin reports. Turmelle “is not planning to join a sports team until the winter, so attorneys did not request emergency legal action for her,” the Bulletin notes.
