Washington Attorney General Nick Brown has appointed an outside law firm to defend Initiative 638. The move comes as families and educators ask a court to stop the girls’ sports restrictions from taking effect Dec. 3.
Brown named Bryan Cave Leighton Paisner in a Nov. 12 statement. He said the arrangement would let his office continue its other work defending transgender Washingtonians’ rights.
Five Seattle families, the Washington Education Association teachers union and the nonprofit TransFamilies filed an Initiative 638 lawsuit in King County Superior Court on Monday, Nov. 9. They want a judge to block the voter-approved girls’ sports measure before it takes effect Dec. 3.
“The Initiative requires every girl to prove her sex before participating in girls’ sports,” says the complaint, which names the state of Washington as its only defendant.
About 56% of voters backed the measure in unofficial returns, the Washington State Standard reported, and Gayety covered its passage on Nov. 5.
What Initiative 638 Requires From Every Girl Athlete
The initiative text on file with the Secretary of State says policies set by school boards, or by a nonprofit sports body such as the WIAA, “must prohibit biologically male students from competing with and against female students” in girls’ individual and team events. The rule covers only events “intended for female students only.”
Any student who wants to play on a girls’ team needs a statement “signed by the student’s personal health care provider that verifies the student’s biological sex,” the measure says. That check happens during the routine sports physical.
The provider may rely “only on one or more of the following: The student’s reproductive anatomy, genetic makeup, or normal endogenously produced testosterone levels.”
Nothing in the text asks the same of boys. Julia Marks, managing director of Legal Voice, said in the plaintiffs’ release that the law “creates an invasive surveillance process that could traumatize young girls across Washington.”
Privacy Clause and Equal Rights Amendment Anchor the Families’ Case
Every count rests on Washington’s own constitution. The families cite its privacy clause in Article I, Section 7, plus the Equal Rights Amendment, since only girls face verification.
They also invoke Article IX, which covers public education. “This new requirement is in direct conflict with the state’s paramount duty to educate our children without discrimination,” Janie White, the union’s president, said in the release.
A fourth claim uses an Article II rule against amending laws without printing the changes in full. The plaintiffs argue I-638 rewrites the Washington Law Against Discrimination, which covers gender identity.
The union says its members include coaches, athletic directors and school nurses. Those are the people “who will be responsible for implementing and explaining the Initiative’s exclusion and sex-verification requirements,” the complaint says.
Five families, all in Seattle, joined under pseudonyms. Two have transgender daughters. Three have cisgender daughters who play girls’ sports.
Aidan Key, who founded TransFamilies, said in the release that “inclusion, not division, makes us all stronger.”
Before Suing, the Families’ Lawyers Wrote to AG Nick Brown
In a Nov. 6 letter to Brown and Solicitor General Noah Purcell, the same lawyers asked the office to “investigate and promptly bring suit on behalf of Washington State taxpayers to obtain this relief.” That letter, sent three days before the filing, is attached to the complaint.
The ACLU of Washington and Legal Voice represent TransFamilies and the parents. Pacifica Law Group represents the teachers union. They are seeking emergency relief before Dec. 3.
“We will fight to stop this law from taking effect and prevent this needless attack on youth in our state,” said Adrien Leavitt, an ACLU of Washington staff attorney, according to the plaintiffs’ release.
Let’s Go Washington, which backed the measure, welcomed the prospect of a defense before Brown announced the outside counsel. “We look forward to the attorney general defending the law,” executive director Darren Littell said.
Littell said opponents “can raise lawsuits about protecting girls’ sports all day, but their true colors are showing,” The Seattle Times reported.
Seattle School Board Also Authorizes Legal Action
The Seattle School Board voted 7-0 on Nov. 9 to authorize legal action over the initiative, The Seattle Times reported.
“Our responsibility is to ask the courts to help us understand how to meet our legal obligations,” board director Joe Mizrahi said.
The board’s vote authorizes a legal challenge. It does not itself suspend the initiative.
