The Idaho Attorney General’s Office says proposed legislation preventing transgender women from participating in sports that align with their gender identity is likely unconstitutional. The House State Affairs Committee last week approved the bill by Republican Representative Barbara Ehardt that applies to all sports teams sponsored by public schools, colleges, and universities. A girls’ or women’s team would not be open to a student who was born male, even if they identify as female. Democratic Rep. Ilana Rubel requested an analysis by the Attorney General’s Office, who found the bill may run afoul of the Equal Protection Clause of the 14th Amendment. According to Assistant Chief Deputy AG Bill Kane, courts have found that governmental actions distinguishing between transgender and non-transgender individuals is a type of sex-based discrimination. Courts have ruled men can be excluded from women’s sports in certain circumstances, but it is not yet clear whether transgender females may be excluded from women’s sports. Also, the provision in the draft legislation regarding how a student’s sex may be established is likely vulnerable to court challenge, and Kane says it’s unclear whether the State’s interests in ensuring fair competition justify the intrusion of privacy. The AG’s response added regulating NCAA and other national sports associations’ activities raises a potential Constitutional concern under the Commerce Clause. The bill currently under consideration by the full Idaho House. (IDaho Democratic Caucus, Idaho Attorney General’s Office)
