The GOP-backed ban on transgender students playing women and girls' school sports is awaiting Gov. Ron DeSantis's signature. Democrats and LGBTQ advocates say the move could result in lawsuits.
Governors in six states have already signed similar bans into law, and a seventh state has similar restrictions via executive order. Idaho's law is already facing a challenge. Proponents of the ban say people assigned male at birth have a physical advantage over those assigned female at birth. Meanwhile, Democrats and LGBTQ advocates like Equality Florida's Gina Duncan say the ban is harmful to young transgender people.
"It is overtly discriminatory, and as called out by the Biden administration, this bill is illegal, discriminatory, and a violation of Title IX," Duncan says.
Adria Lynn Silva is a Title IX attorney. She says there's legal precedent prohibiting discrimination against transgender students. She points to a case in Virginia where a transgender boy was prohibited by his school board from using the boys' restroom.
"The language that the court used is that when you discriminate against somebody because of their gender expression or their gender identity, it's the same kind of segregation that creates harmful stigma, and they made an analogy to the same kind of racial discrimination that students felt when students were forced to use separate bathrooms or restrooms, which was one of the issues in Brown versus the Board of Education," Silva says.
The court ruled in favor of the transgender boy, Gavin Grimm. As for Florida's transgender athlete ban, Silva says the Republican argument relies on stereotypes.
"You can't just make up a bunch of—generally—that you know girls and women athletes are going to be at a disadvantage if you allow somebody who identifies as transgender to compete on the women's team or the girls' team. That's the kind of sex stereotyping that Grimm prohibits," Silva says.
The National Collegiate Athletic Association (NCAA) paves a way for transgender women and girls to compete on female teams. They have to undergo hormone therapy, which suppresses their testosterone. The Florida High School Athletic Association (FHSAA) also allows for transgender athletes to compete. Since 2013, 11 transgender students have applied for and been allowed to play on teams that align with their gender identity. But Florida's new law would do away with those policies in the state.
Attorney Dean LeBoeuf says challenging the ban will be difficult. He says the strongest case would be one where a transgender student meets the FHSAA or NCAA criteria to compete on female teams.
"Then, of course, they would have to say that they applied and showed that they applied and then that they were not allowed to compete despite meeting that criteria and I think that would give them standing to be able to bring a claim," LeBoeuf says.
But he says establishing that the ban discriminates on the basis of sex is going to be difficult because the case law is still evolving around that area.
"You know that whole area is evolving even in the employment sector. I think that it's changed a lot. But historically, that wasn't even a basis to bring a claim historically for employment discrimination, gender identification suits, so it's an area that's evolving in the law, so it's not going to be in my mind easy, it would be clearly an uphill battle," LeBoeuf says.
LeBoeuf says another hurdle a plaintiff would have to overcome is time.
"Let's just say hypothetically they're a senior in high school and they want to compete on, let's just say a tennis team, assuming that there's a relatively short season for that and so by the time they were denied their opportunity to do that and ended up getting an injunction from a court it may be too late for them in terms of that season to be able to compete," LeBoeuf says.
For now, LGBTQ advocates are urging DeSantis to veto the ban.
