Arkansas: In July 2021, a federal District Court in Arkansas issued an injunction blocking implementation of an Arkansas law which prohibited health care professionals from providing or referring transgender young people for medically necessary health care if the purpose of the health care is to affirm a gender identity different than the patient’s assigned sex at birth. The governor of Arkansas originally vetoed the bill, concerned with government overreach, but the Arkansas General Assembly overrode the veto. Plaintiffs filed suit in District Court alleging violations of the equal protection and due process clause of the 14th Amendment. The District Court found that the proposed law was not substantially related to protecting children in Arkansas from experimental treatment or regulating the ethics of doctors and that the purported health concerns regarding the risks of gender transition procedures were pretext for banning an undesirable outcome. The Court concluded that the state’s interest in enforcing the ban during the pendency of the litigation paled in comparison to the harm faced by plaintiffs and accordingly issued an injunction enjoining the Arkansas attorney general from enforcing any provision of the Act during the pendency of the litigation. The Arkansas attorney general filed an appeal to the 8th Circuit asking it to overrule the preliminary injunction and to dismiss the plaintiffs’ claims. This litigation is still ongoing.
Connecticut: In May 2020, the U.S. Department of Education OCR threatened the Connecticut Interscholastic Athletic Conference (CIAC) and six Connecticut school districts with a loss of federal funds or other enforcement actions due to a CIAC policy which allowed transgender athletes to participate on the team of their self-identified gender. The OCR’s letter followed on a complaint by three cisgender female track athletes alleging that the policy denied them athletic benefits and opportunities in violation of Title IX. OCR concluded that the policy violated Title IX by disadvantaging cisgender female athletes. On August 31, 2020, following the Supreme Court’s Bostock decision, the OCR issued a revised letter which clarified that “[t]he Court’s opinion in Bostock also does not affect the Department’s position that its regulations authorize single-sex teams based only on biological sex at birth – male or female – as opposed to a person’s gender identity.” On February 26, 2021, the Department of Education issued a letter to the Connecticut Interscholastic Athletic Conference withdrawing the above letter threatening impeding enforcement action. Further, it stated that the prior letter’s statements of OCR’s interpretation of Title IX should not be relied upon in this or any other matter. In April 2021, The U.S. District Court in Connecticut dismissed the lawsuit brought by the cisgender female track athletes, ruling that the plaintiffs’ claims were moot and that plaintiffs lacked standing to bring the lawsuit.
Idaho: On March 30, 2020, Idaho enacted the Fairness in Women’s Sports Act which prohibited transgender females or biological males whose gender identity is female from competing on “[a]thletic teams or sports designated for [biological] females, women, or girls.” A lawsuit initiated by the American Civil Liberties Union contends that the act violates the Equal Protection Clause and Title IX. August 17, 2020, the U.S. District Court for the District of Idaho issued an order in Hecox v. Little allowing two female athletes to intervene in defense of the act. The order also temporarily halted enforcement of the act while the lawsuit moves forward. The U.S. Department of Justice (DOJ) under the Trump administration also filed a Statement of Interest & amicus curiae brief in the case, in which it explained that the Equal Protection Clause does not require states to abandon their efforts to provide biological women with equal opportunity to compete in school athletics. In February 2021, the DOJ withdrew from the case as amicus curiae. In June 2021, on an appeal challenging the temporary injunction prohibiting enforcement of the law, the 9th Circuit remanded to the District Court to determine whether this case was moot in light of the fact that plaintiffs were no longer involved in athletic teams.
Indiana: Kluge v. Brownsburg Cmty. Sch. Corp., 2021 U.S. Dist. LEXIS 129122 (S.D. IN. 2021). The District Court granted summary judgment in favor of defendant Brownsburg Community School Corporation on plaintiff’s claim that the school’s failure to allow him not to refer to transgender students by their preferred name violated Title VII because the school refused to accommodate his religious beliefs. The District Court assumed without deciding that the plaintiff had a sincerely held religious belief that would prohibit him from referring to transgender students by their preferred names. The District Court noted, however, that Title VII does not require accommodations that would place the school on the “razor’s edge” of legal liability and found that affording an accommodation to plaintiff whereby he would not call transgender students by their preferred name would potentially expose the school to Title IX liability for discrimination.
Florida: Adams v. Sch. Bd. of St. Johns Cty., 968 F.3d 1286 (11th Cir. 2020). The 11th Circuit affirmed the U.S. District Court for the Middle District of Florida’s 2018 decision which held that the school board’s policy, which required students to use a restroom in conformity with their sex as indicated on their enrollment documents, violated Title IX. Adams was assigned as a female at birth and was enrolled as a female but was found to suffer from gender dysphoria and began identifying, presenting himself and living as a boy. The court held that the restroom policy was administered arbitrarily and subjected Adams to unfavorable treatment simply because he defied gender stereotypes. This decision was issued shortly after the U.S. Supreme Court’s Bostock decision, and the 11th Circuit materialized Justice Alito’s prediction when it held that with “Bostock’s guidance, we conclude that Title IX, like Title VII, prohibits discrimination against a person because he is transgender, because this constitutes discrimination based on sex.”
Montana: On May 25, 2021, the governor of Montana signed into law H.B. 112, titled “Save Women’s Sports Act,” which requires “interscholastic, intercollegiate, or club athletic teams or sports that are sponsored by a public elementary or high school, a public institution of higher education, or any school or institution whose teams compete against a public school or institution of higher education must be expressly designated as either [male, female, or coed] based on biological sex.” Further, it provides a cause of action for any student who suffers any direct or indirect harm as a result of a violation of the law to recover from the school or institution of higher education who caused the violation.
Tennessee: In August 2021, Tennessee, joined by 20 other states, filed a lawsuit in a Tennessee District Court seeking to strike down the Biden administration’s directive allowing transgender workers and students to use bathrooms and locker rooms and join sports teams that correspond with their gender identity. The Biden bathroom policy was based on the Department of Education’s interpretation of Bostock v. Clayton County, a Supreme Court case concerning Title VII protections, and its application to Title IX.
Utah: In February 2021, the Utah House of Representatives passed H.B. 302 prohibiting transgender girls from participating in junior and high school sports. The bill prohibits a student of the male biological sex from participating in a sport designated for female students. The bill died in legislative session, but the sponsor of the bill, Rep. Kera Birkeland, announced plans to reintroduce the bill in 2022.
Virginia: Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020). The Fourth Circuit affirmed the U.S. District Court for the Eastern District of Virginia’s 2019 decision which granted a transgender former student an injunction, requiring the school district to amend his student records to reflect his male gender identity, as it violated Title IX. The court also granted the former student’s motion for summary judgement, because the school board’s policy prohibiting him from using the boys’ bathroom and locker room when he was a high school student violated both the Title IX and the Equal Protection Clause. The court also was guided in its decision by the Supreme Court’s interpretation of “sex” in Title VII in Bostock.
West Virgina: In April 2021, the governor of West Virginia signed into law H.B. 3293 which mandates that “interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by any public secondary school or a state institution of higher education… shall be expressly designated as [male, female, or coed] based on biological sex.” A lawsuit was initiated by an 11-year-old transgender girl who argues that this law violates Title IX and the Equal Protection Clause. The Department of Justice filed a statement of interest in the case, providing its view that plaintiff’s Title IX and Equal Protection challenges are likely to succeed on the merits.
Wisconsin: Doe v. Madison Metro. Sch. Dist., No. 20-CV-454 (Wis. Cir. Ct. 2020). The Circuit Court for Dane County, Wisconsin, granted a request to bar Madison School District from enforcing its guidance for staff to obtain a student’s permission to notify or talk about a child’s gender transition with parents. The guidance was aimed at protecting transgender and nonbinary students. The court found that the guidance allowed or required the “District’s staff to conceal information in response or answer untruthfully in response to any question that parents ask about their child at school, including information about the names and pronouns used to address their child at school.” The court noted that the injunction did not create an affirmative duty for staff to disclose such information.