This week, the U.S. Supreme Court issued a 6-3 ruling in West Virginia v. B.P.J., deciding that states are allowed to ban transgender athletes from women’s and girls’ sports under Title IX. Just over four months from now, Colorado voters will decide whether the state should implement such a ban.
In Colorado, Democrats control all major statewide offices and both houses of the state legislature – something that’s not expected to change anytime soon. As a result, it is regarded as a safe haven for LGBTQ and specifically transgender people, fleeing Republican-led states where hundreds of anti-trans bills are being introduced each year.
But despite Colorado’s legislature having passed numerous bills to protect trans people’s civil rights, religious conservatives have still found avenues to attempt to pass anti-trans legislation.
Protect Kids Colorado, a group led by former Republican state senator Kevin Lundberg and Erin Lee, an activist who rose to fame over her disputed claims of her daughter and other children being lured into a secret gender & sexuality club at her local school, was founded to do just that. This year, the group successfully managed to gather signatures for Initiative #109, which would create a statewide ban on trans athletes in girls’ sports, as well as Initiative #110, which would ban certain gender-related healthcare procedures for anyone under 18. Lundberg described the effort as an attempt to “stop the transgender plague in Colorado.”
“Our law actually mirrors the laws from West Virginia and Idaho and Missouri and the 24 others that have put these protections in place,” said Lee, guest-hosting KHOW Radio’s The Dan Caplis Show last month. “So what we’re trying to do is just join the ranks of all the red states who have passed this. We would be the first blue state to pass a law of this kind. We would be the first to do it by the will of the people.”
Conservative Christian activists have spoken at length about using transgender athletes as a wedge issue to mobilize conservative voters.
“This decision is not the final word and it does not require Colorado to abandon its values. Colorado voters will still decide what kind of state we want to be – one that protects children and chooses dignity, privacy, fairness, and belonging – and we expect them to do so this November by voting no on Initiative 109,” Families Not Politics, the coalition organizing against #109 and #110, wrote in a press release after the Supreme Court’s decision.
SCOTUS ruling is a boon for other trans sports bans
The Supreme Court’s decision does not outright ban transgender athletes from girls’ sports. Rather, it allows such bans to be implemented, ruling that these policies are not inherently unconstitutional.
Therefore, if Initiative #109 is approved by Colorado voters in November, the WV v. B.P.J ruling could create an obstacle for any advocates hoping to overturn the proposal in court.
“The Court’s decision in B.P.J. makes it much more likely that other state bans on transgender female athletic participation will be upheld under both Title IX and the Equal Protection Clause,” wrote Scott Skinner-Thompson, a professor at Colorado Law School, in an email to the Colorado Times Recorder.
Could this ruling affect the Jeffco Schools Title IX case?
In March, the U.S. Department of Education Office of Civil Rights (OCR) issued a report alleging that Jeffco Schools had violated Title IX by allowing “up to 61 boys” to participate in girls’ sports. On June 26, the OCR threatened to strip Jeffco’s federal funding if the district does not reverse its policy within 10 days.
The OCR has not publicly explained how it came to this conclusion. However, a copy of the OCR’s Letter of Findings obtained by the Golden Transcript shows the OCR was fully aware that its claim was drawn from Jeffco student records, which list self-reported gender identity rather than biological sex.
Jeffco Schools has disputed the claims, saying that the figure includes mascots, trainers, and managers.
Members of Colorado anti-LGBTQ school activist groups say they have worked directly with the OCR, filing complaints against LGBTQ-inclusive policies to instigate federal investigations like the one in Jeffco.
The day before the June 26 letter from the OCR, the Jeffco school board voted to authorize a D.C. lawyer to take legal action if the OCR continues to threaten district funding.
The Supreme Court’s ruling declared that Title IX gives protections based on “biological sex,” but that does not necessarily give the OCR more ground to stand on in a legal battle.
“However, as the Court made clear, the decision does not dictate that under either Title IX or the Constitution states must exclude transgender females from participating,” Skinner-Thompson told the Colorado Times Recorder.
Header image by Mercedes Mehling on Unsplash
