If the Spring 2021 legislative session in Tallahassee was a basketball game, then the Florida GOP just scored a buzzer-beater by passing the Fairness in Women’s Sports Act. As a result, the near 10,000 transgender youths in Florida lost the ability to express their identity in school sports.
This Sports Act, four pages of legislation snuck into a larger, blander education bill, has an explicit intent:
“Maintain opportunities for female athletes to demonstrate their strength, skills and athletic abilities and provide them with opportunities to obtain recognition and … scholarships that result from participating and competing in athletic endeavors.”
Good intentions, right? Who wouldn’t want girls to have an opportunity to achieve athletic success?
The controversy is that the athlete bill forces all teams associated with schools in Florida to either be coed or only accept athletes based on their biological sex according to their birth certificate. This forces transgender students to play on teams based on their biological sex.
This bill sprouts from the culturally conservative fear that kids who were born male — with more testosterone and a different bone density — will wake up and demand to compete against kids who were born female. Some assume that these children will use their testosterone and bone density to unfairly beat the ‘real girls,’ in which case overzealous soccer moms’ hobby of living vicariously through their daughters’ track and field trophies is threatened.
Scrutiny over transgender participation in sports is nothing new. Last year, three cisgender female track athletes in Connecticut sued the state for allowing transgender girls to be included in the same competition as them. Their case was thrown out by a judge last month. It didn’t help that one of the plaintiffs beat a transgender competitor at a track meet during the court proceedings.
But that’s Connecticut, not Florida.
There’s no clear-cut federal policy or precedent for equity and inclusion in school sports when it comes to gender.
So, if activists try to use the courts to challenge and overturn this 2021 Sports Act in Florida, what would their argument be?
I posed this question to professor Danaya Wright, J.D., the T. Terrell Sessums and Gerald Sohn Professor in Constitutional Law at the University of Florida Levin College of Law.
“I don’t think there’s a possible challenge here under the Fourteenth Amendment,” Wright said, weighing in on how the Sports Act isn’t depriving students of their liberty to join what team they want in an obviously unequal way.
Some activists may disagree, but the fact of the matter is that gender and sex discrimination are not held to the same standards as racial and ethnic discrimination, which is what the Fourteenth Amendment protects against.
“There might be [a challenge] under Bostock and the Civil Rights Act,” Wright said.
The landmark Supreme Court case Bostock v. Clayton County (2020) sets a precedent to protect transgender rights.
But the ‘caveat,’ as Wright put it, is that Bostock dealt with someone being denied employment based on their identity, and the 2021 Sports Act only defines who can be on what team; there is limited application for the case in this scenario.
However, there is another, lesser-known case that is more relevant to this argument.
Drew Adams, a transgender boy from St. Johns County, Florida, won a federal case In August last year. The Eleventh Circuit Court of Appeals ruled that his high school was violating his educational rights as set forth in the Title IX statute of the Civil Rights Act.
His school was forcing him to use the girls’ bathrooms and showers. The school board argued the intent of the policy was to protect the privacy of boys who might feel uncomfortable with Adams using the same bathroom. In reality, no such boys could be found.
To tie this back to the Sports Act: the strongest argument to declare it irrational and discriminatory is to focus on how it effectively precludes transgender students, forcing them to choose either no participation or participation while dealing with gender dysphoria, which is like a prolonged anxiety attack that one third of Americans think you’re faking.
It would not be a strong argument to focus on the lack of evidence that transgender girls are threats to cisgender girls since it’s all about the intent of the law.
A successful challenge to the law would have to prove that there is no rational basis for the bill to have even been made. It will be much simpler to prove that the legal essence of the restriction is flawed when applied to the real world than it would be to prove the scientific motivation behind the restriction was flawed since 1) that would passively admit that the Republicans’ initial intent was scientifically motivated, and 2) it’s easy for the state to fake a scientific rationalization.
An even stronger strategy would be using the upcoming 2022 elections to vote for people who would erase the Sports Act from the state code. The individuals in office matter most, especially since courts move slowly and with limited focus.
In the metaphorical basketball game of state legislation, the Republicans have a team with about twice as many players in the legislature than Democrats, and they are more than happy to play into their constituents’ fear of losing traditional values even if that means fouling transgender athletes.
Check out other articles from Florida Political Review here.
Featured Image: by Steffen Prößdorf used under a Creative Commons ShareAlike 4.0 International license.