DOJ Files Brief Defending the Constitutionality of One State’s “Fairness in Women’s Sports Act”

The Justice Department has filed a friend-of-the-court brief in the Ninth Circuit federal appeals court defending Idaho’s Fairness in Women’s Sports Act against a challenge under the U.S. Constitution’s Equal Protection Clause.

“The Fourteenth Amendment to the U.S. Constitution provides that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ Idaho’s Fairness in Women’s Sports Act complies fully with the U.S. Constitution because it protects all persons equally,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “The Constitution does not require States to abandon their efforts to provide biological girls and women with equal opportunity to participate in and enjoy the life-long benefits that flow from interscholastic athletics. The Fairness in Women’s Sports Act protects equal athletic opportunities for girls and women and permits all persons fairly to participate in sports.”

On Aug. 17, 2020, an Idaho federal district court preliminarily enjoined the Fairness Act, finding that Act discriminated against some transgender athletes. The injunction requires Idaho to allow biological males, who gender identify as female, to play in sports designated only for biological females.

On appeal, the United States’ friend-of-the-court brief explains that the Fairness Act serves the important purpose of preserving equal athletic opportunities for women. The Constitution allows states like Idaho to separate sports by biological sex because females and males have innate physiological differences that directly affect athletics. Ignoring these biological differences in sports would result in females unfairly being displaced by males. The Equal Protection Clause allows Idaho to limit its female athletic teams to biological females to keep a level playing field and preserve women’s equal opportunity to participate in sports. Idaho does not need to abandon this important equality goal and provide the special treatment the district court ordered for some biological males who are allowed to compete against biological females if and only if the biological males are transgender. The Constitution does not require the resulting harm to female equality in athletics.

On March 30, 2020, Idaho enacted the Fairness in Women’s Sports Act Fairness Act, which went into effect in July 2020. Idaho’s Fairness Act contains two main provisions. First, covered athletic teams “shall be expressly designated as one (1) of the following based on biological sex: (a) Males, men, or boys; (b) Females, women, or girls; or (c) Coed or mixed.” Second, “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.” The Fairness Act does not contain a comparable limitation for biological females who wish to participate on a team designated for biological males.

In enacting the Fairness Act, Idaho determined that “[h]aving separate sex specific teams furthers efforts to promote sex equality. Sex-specific teams accomplish this by providing opportunities for female athletes to demonstrate their skill, strength, and athletic abilities while also providing them with opportunities to obtain recognition and accolades, college scholarships, and the numerous other long-term benefits that flow from success in athletic endeavors.” In support of this conclusion, the Fairness Act cites authority establishing that inherent physiological differences between men and women generally include a difference in “strength, speed, and endurance” that results in “different athletic capabilities,” which generally give men a significant advantage in head-to-head competition.  Id.