The Justice Department (DOJ) has defended an Idaho law that bars biological males from competing in all-women sports, arguing that the U.S. Constitution allows the state to recognize the physiological differences between the biological sexes in sports.
One of the athletes' argument is that the law violates the Constitution's Equal Protection Clause because it singles out individuals who depart from sex stereotypes, transgender people, and intersex people for discriminatory treatment, according to their lawsuit.
In a statement of interest on Friday, the DOJ disagreed with the athlete's argument on the equal protection clause, arguing that the state does not need to abandon its efforts to protect biological women with equal opportunity to compete and participate in school athletics in order to accommodate the team preferences of transgender athletes.
The department also pointed out that providing transgender women and girls a special exemption to participate in women sports would in fact require the state to discriminate against straight biological males.
"Refusing to provide a special exemption for biological males if and only if they are transgender is hardly a denial of equal protection on the basis of sex, especially when such an exemption would harm biological females. Rather, Plaintiffs’ requested special exemption would actually require Idaho to engage in discrimination on the basis of gender identity, by compelling the State to discriminate against biological males whose gender identity reflects their biological sex," the department wrote.
The Idaho Attorney General office declined to comment on the statement of interest because of the pending litigation.
"Discrimination against women—including women who are trans—is discrimination. DOJ’s arguments will fail here just as DOJ lost its defense of anti-transgender discrimination this week in the Supreme Court," Strangio said.This statement of interest comes follows a Supreme Court ruling that extends Title VII’s protections to gay and transgender employees, by making it illegal to discriminate based on sexual orientation and gender identity.
The DOJ said in its filing that the Supreme Court's recent decision does not alter its argument on the equal protection clause because the top court cases did not consider anything about the Constitution and that the Fairness Act does not discriminate on the basis of transgender status.
"In sum, the Fairness Act neither bars transgender athletes from competing in school athletics nor draws distinctions based on transgender status or gender identity. Instead, it draws distinctions solely based on biological sex, restricting all biological males from participating on athletic teams designated for biological females," the DOJ said.