A coalition of advocacy groups is preparing to challenge a Washington state ballot initiative banning the participation of transgender girls in girls’ school sports, which voters approved in last week’s midterm elections and will take effect next month.
The challenge is poised to spark a long legal battle over the rights of trans youth in Washington, which has served as a refuge for thousands of trans people fleeing states that have enacted anti-trans laws in recent years.
If implemented, the ballot measure, Initiative 638, would be “the most extreme ban” on trans sports of its kind, according to its opponents. The initiative’s official text says it would require all girls participating in school sports to “verify their biological sex,” which could include confirming their “reproductive anatomy.” Opponents say the language potentially subjects tens of thousands of girls to invasive genital exams in order to participate in girls’ school sports.
“There are parents who will ask themselves: ‘Will my child have to choose between dropping his pants in front of a complete stranger or missing the athletics season?’ We don’t know the answer right now,” said Lexi Koren, a spokeswoman for No Hate in Washington State, the campaign against I-638.
Advocates say state courts represent the most likely route for any litigation, given relevant legal precedent, as well as strong state-level privacy and anti-discrimination laws.
The initiative was introduced by Let’s Go Washington, a conservative political group that has supported 20 ballot proposals since its inception in 2022. Washingtonians voted against the group’s two other initiatives on this year’s ballot, including an effort to repeal the new state income tax on high earners, and Initiative 001, which would have required schools to share sensitive student records with parents. Initiative 638 holds a double-digit lead in its favor — closing in on Democrats’ projected national popular vote margin in the midterms.
“I unfortunately don’t think the blue wave is really applicable to trans people,” said Danni Askini, executive director of Gender Justice League, a trans rights group based in Washington state.
According to a source familiar with the looming legal challenge, the coalition behind the lawsuit includes local and national groups, including the ACLU of Washington, Planned Parenthood and No Hate in Washington State. The complaint would be filed before December 3, when the initiative will take effect. The source added that while I-638 requiring girls, not boys, to verify their gender could violate federal legal precedent, the U.S. Supreme Court is a less likely venue for the advocates’ suit, in part given some of the court’s past decisions on trans rights.
Washington state case law suggests that courts could strike down measures linking participation in school sports to potentially privacy-invasive policies. In 2008, the Washington State Supreme Court ruled against random drug testing conducted in a school district on student athletes, saying the state constitution provides privacy protections beyond those guaranteed by the federal constitution.
Trans rights groups have worked against Let’s Go Washington for the past four years, when the conservative group’s efforts to pass a measure like Initiative 001 began. By requiring schools to share sensitive details about students with their parents, the initiative potentially constitutes a “forced out” of trans and queer students, said Koren of the No Hate campaign, describing the defeat of Initiative 001 as a victory for trans youth.
In addition to a new Democratic supermajority in the state Legislature, Washington may soon have a liberal supermajority on its state Supreme Court; both chambers could play a role in defeating I-638, depending on how the challenges against it evolve.
Jaelynn Scott, who was elected last week as Washington state’s first openly trans lawmaker, said the “infrastructure needed to build LGBTQ power” had become “profoundly weakened” after legal activism focused on marriage ended. Without adequate campaign funding and organizing against I-638, much of the public did not understand the initiative and “how it codified discrimination into law,” she added, noting that some of her voters likely voted for both it and the ban on trans sports.
“If for some reason the legal challenge doesn’t work, then in the state legislature we are certainly going to repeal this law in two years,” Scott said.
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