Florida Court ‘Protects’ Female Athletes by Dismissing Challenge to Fairness in Women’s Sports Act

Dec 1, 2023

A federal judge from the Southern District of Florida has dismissed a lawsuit challenging the Florida’s Fairness in Women’s Sports Act, which is designed to prevent transgender athletes from competing in women’s sports in that state.

The U.S. court specifically found that the state law treats men and women the same according to their biological differences and does not violate Title IX or the U.S. Constitution.

By way of background, the plaintiff (D.N.) in this case was born male, but identifies as female. Her desire is to play on her high school girls’ sports teams. 

Florida passed a law in 2021 that, in the interest of “preserving and promoting the integrity of girls’ sports leagues,” prohibits D.N. from doing that. D.N. then sued the State, claiming that the state’s law violates her rights under a federal law, namely Title IX and the Fourteenth Amendment to the U.S. Constitution. 

The plaintiff sued Florida Commissioner of Education Manny Diaz, Jr., the Florida State Board of Education, and others in hopes of realizing her desire to play on her high school girls’ sports team. Her complaint asserted three claims for relief: Violation of Title IX (Count I); Deprivation of Equal Protection (Count II); and Violation of Due Process Right of Privacy (Count III).

The defendants moved to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 12(b)6, or failure to state a plausible claim.

The court addressed Count II first, which alleges that the aforementioned state law impermissibly classifies people based on their gender. According to the plaintiff, SB 1028 discriminates against “transgender girls and transgender women based on their sex and transgender status.” 

The court wrote that “by its own terms, SB 1028 aims to ‘maintain opportunities for female athletes to demonstrate their strength, skills, and athletic abilities and to provide them with opportunities to obtain recognition and accolades, college scholarships, and the numerous other long-term benefits that result from participating and competing in athletic endeavors.’” Furthermore, the plaintiff “is right to say that the statute treats transgender girls differently from both cisgender girls and transgender boys. Under the law, after all, biological females (whether cis or trans) can play on both girls’ and boys’ sports teams. Transgender girls, by contrast, considered male by birth, cannot play on girls’ sports teams.”

However, according to the court, “not all gender-based classifications violate” the clause, citing case law that suggests the “practice of separating school bathrooms based on biological sex…does not unlawfully discriminate on the basis of sex.” Thus, the court concluded that “gender-based classifications at issue here constitutionally permissible.”

The judge also noted that courts around the country “have similarly held that—given the historic (and ongoing) imbalance in the athletic opportunities that are available to male and female students—the government has an important interest in protecting and promoting athletic opportunities for girls.”

It concluded that SB 1028’s sex-based classifications “are substantially related to the State’s important interest in promoting women’s athletics. We, therefore, grant the defendants’ motion to dismiss the plaintiff’s facial challenge (Count II).”

Turning next to the claim related to Title IX, the court recounted the plaintiff’s allegation that the law violates the federal law because it “segregates transgender girls based solely on their status as transgender girls or women” and “creat[es] different rules for transgender boys versus transgender girls.” 

However, the court reasoned that the plaintiff’s allegation that she “is a girl and that treating her differently than a ‘cisgender’ girl or a transgender boy violates Title IX—is plainly foreclosed by the Eleventh Circuit’s holding in Adams v. School Board of St. Johns County,” which held that public schools have the right to segregate bathrooms and locker rooms based on biological sex.

Lastly, the court considered Count III, in which the plaintiff alleges that SB 1028 violates her “right of privacy” under the Due Process Clause of the Fourteenth Amendment. In support of this theory, the plaintiff argues that the defendants’ “enforcement of the law would require the plaintiff to disclose sensitive medical information that would otherwise not be available, including to third parties, parents and other students who might file claims under this law.” 

The court wrote that the plaintiffs’ due process claim “fails on the merits. As a threshold matter, the plaintiff says that her due-process rights would be implicated by the disclosure of her ‘sensitive medical information,’ but she doesn’t tell us what that information might look like. We’re thus left to guess at what she has in mind—and that’s just not our job.

“… In any event, her reference to ‘sensitive medical information’ is a red herring because SB 1028 provides that ‘a statement of a student’s biological sex on the student’s official birth certificate is considered to have correctly stated the student’s biological sex at birth if the statement was filed at or near the time of the student’s birth.’ In other words, the only document the plaintiff might be compelled to “disclose” is her original birth certificate—not any ‘sensitive medical information that would otherwise not be available.’

“And, as to that birth certificate, the plaintiff has failed to state a viable claim under the Due Process Clause. If the plaintiff is arguing that her right of privacy would be violated if she were forced to “disclose” her original birth certificate to officials at her public school, then she’s plainly failed to state a claim because her own complaint recognizes that the State of Florida already has access to its residents’ birth certificates, which are collected and maintained by the Florida Department of Health.

“ … If, on the other hand, the plaintiff is suggesting that her right of privacy would be violated by having to disclose her original birth certificate in potential lawsuits brought by other students against her high school, she’s likewise failed to state a plausible claim. As we’ve explained, no such lawsuit has been filed—and the hypothetical situation D.N. has envisioned seems implausible on its face.

“Drawing on our ‘judicial experience and common sense,’ Count III fails to state a claim upon which relief may be granted.”

In conclusion, the court wrote that gender-based classifications are rooted in real differences between the sexes—not stereotypes. In requiring schools to designate sports-team memberships on the basis of biological sex, the statute adopts the uncontroversial proposition that most men and women do have different (and innate) physical attributes. Ignoring those real differences would disserve the purpose of the Equal Protection Clause, which is to safeguard the principle that ‘all persons similarly situated should be treated alike.’”

D.N. v. DeSantis; S.D. Fla.; CASE NO. 21-cv-61344-ALTMAN/Hunt; 11/6/23

The opinion can be viewed here: 


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