By Libba Galloway, Stetson University
In this publication earlier in the year, I commented on the pendulum effect when it comes to transgender participation in sports. I suggested that the trend towards allowing athletes to participate according to their gender identity is starting to kick into reverse. For example, the IOC is considering more stringent guidelines for transgender athletes seeking to participate in the Olympic Games; in a Connecticut case challenging the Connecticut Interscholastic Athletic Conference (CIAC) policy allowing students to compete in accordance with their gender identity, the U.S. Department of Education issued a letter ruling that the policy violates Title IX; and House Bill 500 was passed in Idaho prohibiting transgender females from participating in sports.
Last week, however, a federal court struck a blow to those seeking to curtail transgender participation in sports. In a lawsuit filed in the U.S. District Court for the District of Idaho contending that House Bill 500 violates the 14th Amendment’s Equal Protection Clause, the Court issued a temporary injunction barring enforcement of House Bill 500. In its order, the Court stated: “It is the Court’s role — as part of the third branch of government — to interpret the law. At this juncture, that means looking at the Act, as enacted by the Idaho Legislature, and determining if it may violate the Constitution …. Because the Court finds that Plaintiffs are likely to succeed in establishing the Act is unconstitutional as currently written, it must issue a preliminary injunction at this time pending trial on the merits.”
In Connecticut, the court has not yet ruled on the plaintiffs’ claim that the CIAC policy violates Title IX, nor on the counter-argument that the 14th Amendment mandates that transgender athletes be afforded the right to compete in accordance with their gender identity. Given that the majority of the states have policies allowing high school students to compete in accordance with their gender identity, while bills similar to House Bill 500 have been introduced in other states, it’s likely that the battle over the rights of transgender athletes will continue to be fought in these and other courts.
So far, the NCAA has stayed out of this legal fray, but it hasn’t completely side-stepped the issue. The NCAA was scheduled to make a decision this month as to whether to move its first and second round March Madness basketball games out of Boise because of House Bill 500. But last week, the Board of Governors decided to table the decision until its October meeting, for two reasons: to see what happens with the pending lawsuits, and to review its own policy on transgender athletes.
The final chapter in this story is far from being written. And as of now, it looks like the pendulum is moving back and forth.
Libba Galloway is Assistant Professor of Practice and Director of the Business Law Program at Stetson University’s School of Business Administration.
