Biden, Bostock, and Anti-Trans Legislation in Arizona

By Alexandra Eagle.

A Rise in Anti-Trans Legislation

In the past year in the United States, state legislatures have proposed and passed a number of laws designed to limit or restrict trans folks’ (and especially trans youths’) access to healthcare and equal participation. More than a dozen state legislatures have sought specifically to limit the rights of trans women and girls to participate on sports teams aligned with their gender identities.

Proponents of trans sports bans argue that such bans are necessary to “protect” cisgender women athletes from trans women who, due to their “superior” strength and athletic abilities, would dominate women’s athletics. Opponents of the bans point to emerging understandings of both gender and sex. For example, new social and biological research suggests gender and sex are nondeterminative of physical abilities and behaviors, and that gender and sex exist beyond a binary or a linear spectrum.

Arizona is no exception. In spring 2020, the Arizona House of Representatives transmitted H.B. 2706 (“Save Women’s Sports Act”) to the Senate. A nearly identical bill (S.B. 1637, the “Equitable Treatment of Women and Girls in Sports Act”) was introduced in the Senate on February 1, 2021. The Senate Bill, under the guise of “equitable treatment of women and girls,” excludes trans women and girls from participating in sports for women and girls in public schools. The bill would require individuals whose gender is questioned to provide medical proof of their biological sex. It would also create a cause of action for students who are “deprived of an athletic opportunity or suffer[] any direct or indirect harm” as a result of a violation of the section. This would allow cisgender girls to sue if a trans girl was selected for a sports team to the exclusion of the cisgender student.

If enacted, the law would effectively prohibit trans girls’ participation in sports in Arizona public schools, including universities, by forcing these girls to either forgo sports completely or to participate in boys’sports in contravention with their identities.

Biden’s New Executive Order and the Cultural Wake of Bostock

The “flurry” of anti-trans legislation has likely been prompted by the Supreme Court’s consideration and 2020 ruling in Bostock v. Clayton Country, Georgia, as well as by Biden’s Presidential win.

In Bostock, the Supreme Court held in a 6–3 decision that anti-LGBTQ discrimination is discrimination “because of . . . sex” under Title VII of the Civil Rights Act of 1964. Thus, federal protections against discrimination on the basis of “sex” include sexual-orientation and gender-identity protections. On his first day in office, President Biden issued an executive order affirming his administration’s intent to honor the Bostock holding.

The order directs federal agencies to develop plans for adjusting their policies and practices to reflect the Bostock holding. In coming months, we are likely to see more clashes between Biden’s Bostock policy and state legislatures attempting to enact trans sports bans.

Title IX of the Education Amendments Act of 1972 prohibits sex-based discrimination in educational programs receiving federal funding. Bringing Bostock to life in public schools and universities under Title IX would likely conflict with many proposed trans sports bans. (While Title IX applies to all federally-funded education programs, athletic funding is one of the arenas where disparities are most visible, and Title IX has thus received special attention with regard to athletics, especially university athletics.)

One trans woman athlete, joined by the ACLU, has already filed suit in federal court in Idaho—the first state to enact a trans sports ban—after seeing her university athletics dreams dissolve due to the law. On August 17, 2020, the United States District Court in Idaho granted Hecox (the athlete) a preliminary injunction, stopping Idaho from implementing the law pending a trial on the merits of her case. In doing so, the court recognized that Hecox and the ACLU are likely to succeed in showing the Idaho sports ban violates equal protection but did not hold definitively that the ban violated Title IX protections or the Constitution.

The Tenuous Future of Trans Rights
As more states pass and put into effect laws banning trans women’s participation in sports and other anti-trans legislation, the door will open for more challenges on these grounds at all levels of education. But the outcome of such challenges, if they reach the Supreme Court, are not at all clear, especially considering the ideological shift of the Supreme Court with the confirmation of Justice Barrett.

The ACLU has noted that protections on judicial grounds and by executive order alone are more tenuous than statutory protections, and urges codifying express trans-identity and sexual-orientation protections. While some municipal and state governments have enacted such explicit protections, the federal government has not.

Follow the status of Arizona’s current trans sports ban, S.B. 1637, on the legislature website.

 

 

"Rainbow & Trans Flag Raising" by Councillor Kristyn Wong-Tam is licensed under CC BY-NC-SA 2.0

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By Alexandra Eagle.

J.D. Candidate, 2022

Alexandra is a Staff Writer for the Arizona State Law Journal. She graduated from the University of Colorado in 2016, where she studied Economics and Anthropology, and minored in Women and Gender Studies. When she isn’t studying, Alexandra enjoys dancing Lindy Hop and Balboa, searching for the best espresso in Phoenix, and spending time outside hiking, climbing, and trail running.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.