The Department of Justice today filed a statement of interest in Idaho federal court defending Idaho’s Fairness in Women’s Sports Act against a challenge under the Constitution’s Equal Protection Clause.
“Allowing biological males to compete in all-female sports is fundamentally unfair to female athletes” said Attorney General William P. Barr. “Under the Constitution, the Equal Protection Clause allows Idaho to recognize the physiological differences between the biological sexes in athletics. Because of these differences, the Fairness Act’s limiting of certain athletic teams to biological females provides equal protection. This limitation is based on the same exact interest that allows the creation of sex-specific athletic teams in the first place — namely, the goal of ensuring that biological females have equal athletic opportunities. Single-sex athletics is rooted in the reality of biological differences between the sexes and should stay rooted in objective biological fact.”
On March 30, 2020, Idaho enacted the Fairness in Women’s Sports Act (Fairness Act), Idaho Code Ann. § 33-6202 et seq., which goes 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.” Idaho Code Ann. § 33-6203(1). Second, “[a]thletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.” Id. § 33-6203(2). 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.” Id. § 33-6202(12). 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. § 33-6202(1)-(10).
In its statement of interest, the United States explains that the Equal Protection Clause of the Constitution does not require States to abandon their efforts to provide biological women with equal opportunity to compete for, and enjoy the life-long benefits that flow from, participation in school athletics in order to accommodate the team preferences of transgender athletes. Put differently, the Constitution does not require Idaho to provide the special treatment plaintiffs request, under which biological males are allowed to compete against biological females if and only if the biological males are transgender.