In briefs filed Wednesday, Alabama Attorney General Steve Marshall and 24 other Republican state attorneys general argued that Idaho should bar transgender girls from playing on girls’ sports teams because of “biology.”
“Segregating based on biology rather than gender identity makes sense because it is biological differences, not gender identity, that require segregating teams in the first place: biological males are, on average, stronger and faster than biological females, regardless of gender identity,” the 24-page amicus brief filed with the U.S. Supreme Court reads. “If these average physical differences were irrelevant, there would be no need to segregate sports teams at all.”
Also participating were the attorneys general of Alaska, Mississippi, Florida, Missouri, Georgia, Montana, Indiana, Nebraska, Iowa, New Hampshire, Kansas, North Dakota, Kentucky, Ohio, Louisiana, Oklahoma, South Carolina, Utah, South Dakota, Virginia, Tennessee, West Virginia, Texas and Wyoming. Marshall co-led the report with Arkansas Attorney General Tim Griffin.
Get morning headlines delivered to your inbox
Subscribe
Idaho banned transgender women and girls from competing on sorority athletic teams in 2020, setting off a wave of similar bans in other states, including Alabama. A U.S. district court blocked the law later that year, saying it may violate the Equal Protection Clause of the 14th Amendment. The U.S. 9th Circuit Court of Appeals upheld the court’s decision in June, leading to an appeal to the U.S. Supreme Court.
The brief argued that the Equal Protection Clause does not require states to define sex as gender identity.
“While the underlying issues may be sensitive and complex for state legislators, school boards, and athletic commissioners, the legal issues are straightforward,” the attorneys general wrote.
In Alabama, litigation is ongoing over a measure that would ban some gender-affirming care for transgender people under the age of 19.
Shannon Minter, vice president of legal affairs for the National Center for Lesbian Rights (NCLR), said in a conference call Wednesday afternoon that the brief was “very weak” and “puts together straw men rather than addressing the actual legal issues raised in the lawsuit.”
NCLR is involved in a lawsuit over gender affirming care in Alabama.
Minter said the brief did not mention Bostock v. Clayton County, a 2020 case that held that being transgender is a protected status in employment disputes.
“Just as Judge Bostock ruled in the employment discrimination case, that very issue is the legal question in these cases: Does Judge Bostock’s reasoning apply to discrimination against transgender students in schools? Yet this brief doesn’t even address the most important case,” he said.
Cardelia Howell Diamond, a mother of two transgender children, wrote in a text message on Wednesday afternoon that the law isn’t about barring “guys” from transgender sports, but rather impacting women and girls who don’t measure up to a required standard of femininity.
Howell Diamond was referring to the treatment of Olympic gold medalist boxer Imane Khelif, who faced criticism and false allegations online about her sexuality. French prosecutors are investigating the harassment claims, according to the Associated Press.
“This is a game only women can lose,” she writes. “It’s a power struggle to maintain control over women’s bodies, what women can do, where women can be, and what it means to be a proper woman. All based on men’s fear of losing power. Trans kids are an easy first target.”
