Alabama Attorney General Steve Marshall joined 23 other states in filing an amicus brief in support of banning trans girls from sports.
Specifically, the brief asks the Supreme Court to review and overturn an injunction placed on Arizona’s ban on transgender athletes by the 9th U.S. Circuit Court of Appeals.
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Marshall wrote the brief alongside Arkansas Attorney General Tim Griffin and with support from Alaska, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming.
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The court instituted the injunction in September in a 3-0 decision in response to Arizona’s Save Women’s Sports Act, which enacted a blanket ban on transgender girls in girls’ sports, regardless of how long they had been transitioning and if they were on puberty blockers. The plaintiffs in the case were two trans girls and their parents suing to overturn the law.
Judge Morgan Christen, who wrote the decision, said that “[The law] permits all students other than transgender women and girls to play on teams consistent with their gender identities. Transgender women and girls alone are barred from doing so. This is the essence of discrimination.”
The amicus brief makes several arguments in favor of banning transgender girls from sports. One such claim is that it would be expensive and difficult for schools to implement policies allowing trans girls to participate on girls’ sports teams – an argument that ignores the ease with which many schools across the country have implemented trans-friendly policies.
The brief also argues that sex is not equivalent to gender identity under the Equal Protection Clause of the Constitution – a claim that ignores established precedent from the Supreme Court case Bostock v. Clayton County, which ruled that trans people are subject to sex-based protections due to their gender modality.
The Attorneys General then make two legal arguments, claiming that the Circuit Court made its decision on erroneous grounds and that other readings of the law may be more plausible. They also argue that a rational-basis review is required to determine if the plaintiffs’ claim is underinclusive. This means that an additional overview, informed by constitutional law, would be done to determine if the argument being made is internally consistent with equal protection – if not, it would get thrown out.
It is unclear whether these arguments will hold up in court. SCOTUS has given no public indication of whether it will take this case. It has already accepted the case of United States v. Skrmetti, which will determine whether states can legally ban gender-affirming care for minors.
There is no evidence that transgender girls have a significant biological advantage in sports. Rather, evidence suggests that transitioning levels the playing field.
Nevertheless, anti-trans sentiment continues to fuel the fight against trans rights. “Our coalition is determined to preserve the 50 years of work that expanded opportunities and leveled the playing field for girls and women in sports,” AG Marshall said in a press release.
“But the left continues to pander to a small minority of their base… Parents of daughters are rightfully outraged at the loss of positions on teams and college scholarships. As our multiple briefs to the Supreme Court show, it’s time to return to fairness in opportunity for sports,”
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