By Emily J. Houghton and Erica J. Zonder
The plaintiff L.E. is a transgender boy who is suing Tennessee Governor Bill Lee along with the individuals employed within the Tennessee Board of Education, and Knox County Board of Education. The lawsuit attempts to challenge SB 228, Gender in Athletics Law which was passed in 2021 in the state of Tennessee and the subsequent revised I-171 policy (L.E. v. Lee, 2021). Under SB 228, students are only allowed to compete in middle school or high school athletics in Tennessee, based on gender assigned at birth or on their birth certificate. SB 228 also dictates that each “local governing body” needs to enforce this statute. Following the passage of SB 228, the Knox County Board of Education revised their athletic participation policy, I-171, to reflect the sex assigned at birth stipulation. L.E. is attempting to compete on the boys’ golf team.
Background
L.E. began his transition from female to male in 2019. By 2021, L.E. was a freshman at Farragut High School in Knox County TN. L.E. wanted to compete on the boys’ golf team at the high school, but SB 228 and I-171 required a birth certificate which would have required that L.E. participate on the gender of the team he was assigned at birth (female). Prior to the passage of SB 228 in March 2021, the Tennessee Secondary School Athletic Association (TSSAA) and the Tennessee Middle School Athletic Association (TMSAA) segregated certain sports based on sex. L.E. wanted to play golf, a sport that had designated boys and girls teams by the TSSAA. Prior to 2021, TSSAA also had a policy that allowed athletes to participate based on gender identity even when it conflicted with the sex listed on their birth certificate. In order to do so, students had to follow the Gender Identity Eligibility Process and submit specific forms for review. When SB 228, the Gender in Athletics Law passed, it restricted participation to gender assigned at birth, recorded on the student’s birth certificate. The law included prefatory clauses that discussed the fear that transgender girls would create an unsafe sporting environment and take athletic opportunities away from cisgender girls which would diminish their chances to gain collegiate athletic scholarships. As of July 2021, I-171 stated that participation in school athletics was based on sex at the time of birth and required an original birth certificate. As such, the Knox County Board of Education updated the language in their Interscholastic Athletics Policy to comply with SB 228. (Additionally, SB 1861 was passed in April 2022 which stipulated that if school districts or individual schools did not follow SB 228 they could lose state funding until they comply).
On November 4, 2021 the plaintiffs filed a complaint against Lee and others within the Tennessee Board of Education and Knox County Board of Education alleging that SB 228 and I-171: 1) deprived the plaintiff of equal protection under the Fourteenth Amendment 42 § U.S.C. 1983, and 2) violated Title IX of the Education Amendments of 1972 20 § U.S.C. 1681.
Count 1: Deprivation of Equal Protection: U.S. Constitutional Amendment XIV
The Equal Protection Clause of the Fourteenth Amendment, enforceable pursuant to 42 § U.S.C. 1983, provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The plaintiff alleges that SB 228 and I-171 deprive him of equal protection of the law by banning transgender youth from athletic participation that is consistent with their gender identity (*93). The plaintiffs further argue that SB 228 and I-171 are discriminatory based on the policies that treat transgender students differently from other students because of their transgender identity and because transgender students don’t fit within stereotypes of what it means to be a boy or a girl (*95). They also argue that transgender people should be considered a suspect class in part because they have been historically discriminated against, they are an “insular minority who lack political power to protect themselves” (*92). Furthermore, the plaintiffs allege that by excluding all transgender students from participating on all teams does not support the state’s reasoning that the policy was designed to protect and promote the participation and safety of cisgender girls in sports (*96).
Count 2: Violation of Title IX 20 § U.S.C. 1681
The plaintiffs assert that schools are not supposed to discriminate in athletics or based on gender, thus banning transgender students from sport participation is sex discrimination and violates Title IX (*107). Since the Knox County Board of Education receives federal funding, the plaintiffs argue they need to comply with Title IX which states “no person in the United States shall, on the basis of sex, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance” (*104).
Court Ruling and Analysis
In March of 2024, the Middle Tennessee U.S. District Court ruled on three Motions for Summary Judgment, filed by 1) Knox County Board of Education and its Superintendent; 2) Governor Bill Lee and others; and 3) Plaintiff against both groups of Defendants. The parties’ motions were granted in part and denied in part, and the Court ruled that the plaintiff would be allowed to try out for the boys’ golf team (L.E. v Lee, 2024, *3).
Standing
The Court addressed all elements: injury in fact, likely caused by the defendants, and redress.
Injury in fact:
The defendants argued the plaintiff was not a member of the class of people impacted by the Gender in Athletics Law because he had not shown that he had the requisite skill to actually make the boys’ golf team. The Court rejected this argument, citing the Supreme Court ruling in Northeastern Florida Contractors v. Jacksonville (“NFAGC”) (1993) – a plaintiff need only demonstrate he is able and ready to compete and that a discriminatory policy prevents (him) from doing so on an equal basis (*23). Here, L.E. was ready and able to try out for the boys’ team and both the Law and the revised I-171 policy created a barrier based upon his gender identity. The defendants put forth an alternate theory here, arguing that L.E.’s “profession of intent” is not enough, resulting in no “actual or imminent” injuries. The defendants supported this argument by claiming that L.E.’s parents were unaware of tryout dates, L.E. was not training to a level commensurate with a State Champion caliber team, neither L.E. or his parents spoke to the Coach, and that L.E. rejected a tryout opportunity the year before. Therefore, trying out was a “someday intention.” The Court rejected each element of this argument. Article III does not require plaintiffs to take actions just to establish standing when doing so would be futile (*26). Why put the tryout date on your calendar when you can’t try out? Why accept an invitation to try out when you can’t be on the team? Why train harder for either?
Traceability (i.e. are the injuries caused by the Law?):
The defendants also argued that the decision to have separate boys and girls teams was the product of the rules and policies issued by the TSSAA’s independent action. Per the Court, this missed the point. L.E. was not challenging the separation, he was challenging his ineligibility to compete on the boys’ golf team. And regardless, the teams are separate because of the Gender in Athletics Law as both the Law and I-171 policy are “motivating factors” excluding L.E. (*33).
Redressability:
The defendants argued “there is no way to know the future” so even if the plaintiffs were successful in invalidating the Law, the TSSAA would have three options so one can’t speculate on what they would do. The Court disagreed, saying that the TSSAA’s prior transgender policy would govern (allowing participation consistent with gender identity), or they could adopt a new one, making L.E.’s alleged injuries redressable.
Sovereign Immunity
Per the Court, Governor Lee’s connection to the Law does not go to its enforcement (*38), as there is no realistic possibility that the Governor himself would take legal or administrative actions against L.E.’s interests. Therefore, Lee cannot be subject to this suit. All other named parties are not protected, as all have some connection to the enforcement of the challenged Law beyond just general authority to enforce the laws of the state (citing Ex Parte Young).
Equal Protection Clause
As aforementioned, L.E. was not challenging the defendants’ system of sex-segregated sport, but his ability to participate on a specific sex-segregated team. L.E. identifies as a boy, but the Law and revised policy made him ineligible to compete on the boys’ golf team. As the Court noted, his cisgender male peers were eligible. L.E.’s argument then was that he was being excluded solely because he is transgender (*46). The defendants claimed these laws are “definitional” and it is the TSSAA that sex segregates the students. Furthermore, the defendants argued that transgender students are treated the same as any student because everyone’s gender is defined by sex. The Court disagreed, as imposing the same definition on all students regardless of their gender identity does “not bring the challenged law and policy outside the ambit of the Equal Protection Clause” (*49) and further, the Supreme Court rejected the idea that equal application of a statute containing classifications was enough to remove the classifications from the Fourteenth Amendment’s “proscription of all invidious… discriminations” (Loving v. Virginia, 1967). And further, as the Fourth Circuit noted in Grimm (a case about a bathroom bill), that “logic is like saying that racially segregated bathrooms treat everyone equally, because everyone was prohibited from using the bathroom of a different race” (2020). Here, every cisgender student was permitted to play on the teams that aligned with their gender identity, but L.E. and other transgender students were not (*50).
The Court also considered that the Gender in Athletics Law and I-171 policy were subject to intermediate scrutiny. To establish this level of scrutiny, L.E. must demonstrate that he received disparate treatment as compared to other similarly situated persons because of his sex. Per L.E., he is similarly situated to other boys (i.e. his cisgender male peers) as the record reflects that he expresses his male identity in all aspects of his life. The defendants argue that intermediate scrutiny should not apply, as L.E. is anatomically female and has other differences such as muscle mass, bone density and natural testosterone levels that are not alike/are distinct from his cisgender male peers. The Court favored L.E. here, as the defendants offered no evidence or explanation as to why L.E.’s genitalia is relevant for the purposes of athletic competition and any evidence about bone density, natural testosterone levels, or physical differences were not shown by the defendants to be connected to the Law or I-171 policy. And further, if one of L.E.’s cisgender male peers had similar muscle mass, bone density, etc., he would be allowed to play on the boys’ golf team.
As the Court found that intermediate scrutiny applied, the State offered four justifications to demonstrate that the Law serves important governmental objectives and the discriminatory means are substantially related to the achievement of those objectives. The State asserted the law 1) clarifies the meaning of gender in interscholastic sports; 2) constitutes government speech; 3) ensures that boys cannot displace girls in athletics simply by claiming a female gender identity; and 4) reduces the risk of injury. Per the Court, these proposed justifications do not survive intermediate scrutiny. Justifications 1 and 2 were invented post hoc by the defendants for the purpose of litigation, and per L.E., nothing in the Law’s text suggested the government was concerned about these issues when the law was enacted. (*57). The Court then set aside 3 and 4, as L.E. is a transgender boy seeking to play a non-contact sport, therefore he is not displacing any girls nor is there a safety issue. The Court further ruled that even if rational basis review applied here, the Law and I-171 policy still fail. Under rational basis, justification 1 and 2 would not be set aside, as post hoc justifications are not prohibited (as is the case with intermediate scrutiny), necessitating consideration. Per the Court, 1) “clarity” is not a legitimate governmental interest and 2) government speech is not a legitimate governmental interest for discrimination under the Equal Protection Clause – it is a category of conduct to which the Equal Protection Clause does not apply and further, simply calling a law governmental speech does not make it so. Also, framing any discriminatory classification as an articulation of the government’s views on an issue would cause the Equal Protection Clause to become “dead letter” (*65).
Title IX
L.E. cited Bostock in arguing that discrimination on the basis of transgender status constitutes sex discrimination (2020), and further referenced a Sixth Circuit case, Smith (2004), holding that sex stereotyping based on a person’s non-conforming behavior is impermissible discrimination. Courts often look at Title VII when analyzing Title IX claims. The Court, however, cited a recent Sixth Circuit case L.W. (2023) stating the Title VII analysis does not apply to Title IX and further that Smith “does not purport to break new ground or create a new rule for transgender discrimination” *71). Per the Court, they must defer to the Sixth Circuit interpretation of its own opinions and therefore L.E.’s Title IX claim must fail. The Court does note that the U.S. Department of Education is currently revising its Title IX regulations to prohibit transgender participation bans.
Permanent Injunctive Relief
In terms of L.E.’s Equal Protection claim, the Court finds that the requirements for permanent injunctive relief are “easily met” (*71-73). When constitutional rights are threatened or impaired, irreparable harm is presumed; it is always in the public interest to prevent violation of a party’s constitutional rights; monetary damages cannot make L.E. whole from the unlawful denial to participate in a “unique, temporally isolated activity such as high school sports,” nor will he be able to get his remaining season back. Therefore, the Court found that “anything short of a permanent injunction here would be inadequate” (*73).
Conclusion
The Court specifically notes that the decision does not “wipe” the Gender in Athletics Law or the revised I-171 policy “off the books,” but rather enjoins the enforcement of both against L.E. as he attempts to make the boys’ golf team. The Court notes that L.E.’s status as a transgender boy seeking to play a non-contact sport factored heavily into the Court’s analysis.
References (partial)
L.E. v. Lee et al., Complaint. No 3:21-cv-00835 (M.D. TN, November 4, 2021).
L.E. v. Lee et al., Opinion. No 3:21-cv-00835 (M.D. TN, March 29, 2024).
Emily J. Houghton, Ph.D. is an Associate Professor of Sport Management at Minnesota State University, Mankato.
Erica J. Zonder, J.D., M.S. is an Associate Professor of Sport Management at Eastern Michigan University.
