Washington Attorney General Nick Brown announced Thursday his office is refusing to defend Initiative 638 — a ban on transgender girls in girls’ school sports that voters recently passed — against a lawsuit that would block the measure from taking effect.
Brown said his decision was a response to potential conflicts of interest and would allow his office to continue to focus on equal protection for transgender people.
Conservative critics had accused Brown’s office of facing conflicts when it came to maintaining the initiative, given that the office has opposed bans on transgender female athletes in other settings, including signing lawsuits outside of Washington Stateand the fact that Brown’s former law firm, Pacifica Law Group, is part of the plaintiffs’ legal team.
Brown appointed national cabinet Bryan Cave Leighton Paisner to advocate for Initiative 638 “on behalf of the state of Washington.” He described the move as a common step his office takes to resolve conflicts of interest or workload issues.
In a statement, Brown said, “One of the most important jobs of the Attorney General’s Office is to ensure that laws passed by the Legislature or by voter initiative are vigorously defended. »
“My personal opinions do not dictate what laws will be defended or the strength of that defense,” he added.
Brown also recognized the work his office has done to advocate for the rights of transgender Washingtonians.
“We have filed and won important lawsuits against the federal government to protect access to vital health services, and we have vigorously defended state laws that provide transgender people equal protection under Washington law. We will not and cannot abandon this work,” Brown said.
It remains to be seen whether Brown’s decision to hire an outside firm to defend I-638 will appease his supporters.
Conservative commentator Brandi Kruse previously said on Facebook: “Under no circumstances should Attorney General Nick Brown be trusted to defend a ballot initiative that he does not support, that his own party has sworn to defeat, and that his former law firm is challenging in court.” »
And Washington State Republican Party Chairman Jim Walsh wrote that “in a rational system, State AG Brown’s close personal (and) professional ties to this left-wing law firm would force one of them to recognize a conflict of interest (and) withdraw from pursuing legal action against each other. The Washington courts, as they currently operate, are not a rational system.”
On November 9, the ACLU of Washington, Legal Voice and Pacifica Law Group sued the state in King County Superior Court to block the measure from taking effect.
They represent five families whose daughters play school sports, including two trans girls. The state’s largest teachers union, the Washington Education Association, and a nonprofit that supports families with transgender children, TransFamilies, are also plaintiffs in the case.
The lawsuit alleges that the initiative and the gender verification process it requires are discriminatory and violate the Washington State Constitution and students’ privacy rights. He asks the court to intervene quickly and prohibit the application of the initiative before it comes into force on December 3.
Seven of the plaintiffs are parents of trans and cisgender girls ages 11 to 17 in Seattle public schools who participate in school sports. They claim their students would be harmed by the initiative’s “intrusive gender verification requirements.” The parent of a Grade 12 transgender athlete said the scrutiny and ban would cause her daughter “serious harm and compromise her well-being”. All parents sought to remain anonymous in the lawsuit to protect their children’s privacy.
The teachers’ union joined the lawsuit because its members would be “required to implement and explain the verification regime”, it said.
The ban would require girls to undergo a genital exam, hormone test or chromosome test to verify their birth sex before they can participate on a girls’ school sports team. This would be a change in Washington State policy, which has allowed students to compete on sports teams matching their gender identity for nearly 20 years.
The Washington Interscholastic Activities Association would determine how to bring public school sports rules in line with the new law.
After voters approved I-638, the organization said in a statement that it would continue to follow state law and was prepared to make “necessary changes” by Dec. 3.
The lawsuit says the attorney general’s office opposed a similar ban on transgender girls in girls’ school sports last spring, when the WIAA considered but did not adopt a similar change in amendments to its handbook. According to the lawsuit, “the Civil Rights Division of the Attorney General’s Office reviewed the amendments and concluded that they would violate state law.”
The I-638 lawsuit argues that for students who do not have a regular health care provider, the gender verification process could require costly laboratory tests or invasive exams that are not medically necessary.
The plaintiffs also claim the Dec. 3 effective date is confusing: “Families of girls will need to schedule rushed midseason medical appointments — and possibly blood work or genetic testing — in order to continue playing a fall or winter sport,” according to the lawsuit.
Darren Littell, executive director of Let’s Go Washington, which supported I-638, said KUOW opponents’ gender verification claims were based on “false assumptions.”
Littell said doctors already know if a child is trans and that information can be communicated to schools without violating a student’s privacy.
“What we’ve seen in other states is just saying, ‘Is this person eligible for women’s sports, yes or no,'” Littell said. “It has nothing to do with disclosing private information. All it does is say whether or not that person is eligible for women’s sports.”
He said there were a lot of girls in Washington state who “wanted to see this respected,” and he hoped the attorney general’s office would vigorously defend the initiative.
The text of the initiative stated that it was intended to preserve the integrity and fairness of women’s interscholastic sports. Supporters say transgender girls have advantages in sports that cisgender girls don’t have. However, research on this topic is inconclusive for school-aged athletes.
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