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5 questions as Supreme Court considers marriage

Justices poised to issue most significant rulings on gay rights

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Supreme Court, marriage equality, gay marriage, same sex marriage, Proposition 8, Defense of Marriage Act, gay news, Washington Blade
Supreme Court, Ted Olson, National Equality March, Edith Windsor, DOMA, Prop 8, Proposition 8, gay marriage, same sex marriage, marriage equality, gay news, Washington Blade

There are many legal questions to ponder as observers await the Supreme Court decision on Prop 8 and DOMA. (Washington Blade photos by Michael Key)

In the wake of last week’s announcement that the Supreme Court will hear lawsuits challenging California’s Proposition 8 and the Defense of Marriage Act, observers over the next several months will wait on pins and needles for what may be the most significant ruling on LGBT rights in history.

Here are five questions that advocates are pondering as they await decisions in Hollingsworth v. Perry, the challenge to Prop 8, and Windsor v. United States, the lawsuit against DOMA.

1. Will the Supreme Court overturn same-sex marriage bans in all states?

By taking up the Prop 8 case, as opposed to letting stand a more narrow ruling from the U.S. Ninth Circuit Court of Appeals that applied only to California, the court has an opportunity to make a ruling that not only says the same-sex marriage ban in California is unconstitutional, but marriage bans in all states throughout the country are as well.

David Boies, a co-counsel representing plaintiffs in the lawsuit on behalf of the American Foundation for Equal Rights, said during a conference call last week justices would produce a ruling that’s more expansive than California if they decide the Prop 8 case on its merits and find it violates the U.S. Constitution.

“That would mean there would be a fundamental right to marry in every state in the country because obviously the federal constitution applies to every state in the country,” Boies said.

Much in the same way that the 1967 ruling in Loving v. Virginia ended bans on interracial marriage in all states, such a sweeping decision from the Supreme Court in Prop 8 would require the 41 states that don’t have same-sex marriage on the books to allow gay couples to marry. Not only would marriage equality be restored to California, it would be extended to the estimated 646,000 same-sex couples throughout the country.

Jon Davidson, legal director at Lambda Legal, said this outcome is one of several possible ways the Supreme Court could rule if justices find a constitutional right to marry under either the due process clause or the equal protection clause.

“Either finding that we share the fundamental right or finding that it violates equal protection generally to not allow same-sex couples to marry when different-sex couples can would extend the right to marry to all 50 states,” Davidson said.

Still, the general consensus among legal experts is that the court isn’t likely to reach this outcome when it’s possible for them to reach a ruling on more narrow grounds that would just affect California or a limited number of states.

Doug NeJaime, who’s gay and a law professor at Loyola Law School, posited that since California allows domestic partnerships but not same-sex marriage, the court could produce a ruling requiring all eight states that offer either domestic partnerships or civil unions to provide full marriage rights for gay couples. Those states are California, Illinois, Rhode Island, Delaware, Hawaii, Oregon, Nevada and New Jersey.

“The middle course would be one that says states that have allowed same-sex couples to have comprehensive domestic partnerships or civil unions don’t have an adequate justification for preventing them from marrying,” NeJaime said. “That would affect more than just California, but it wouldn’t affect every state.”

2. What happens if the Supreme Court upholds both Prop 8 and DOMA?

In what he might be considered the opposite scenario compared to the situation described above, the Supreme Court could also deal a devastating blow to LGBT advocates by upholding either or both Prop 8 and DOMA.

A loss for LGBT advocates in the court in the Prop 8 case would mean they would need another voter-initiated ballot campaign to repeal the measure ballot, much like the divisive and expensive 2008 campaign that led to its passage by voters.

John O’Connor, the newly appointed executive director of Equality California, said “everything’s on the table” for discussion in the event that the Supreme Court determines the ban on same-sex marriage in California is constitutional.

“The question about would we go back to the ballot — it’s absolutely a possibility,” O’Connor said. “The timing and the tactics and all of that remain to be determined between now and the time the decision comes down but it’s absolutely a priority for us to plan that.”

Asked whether he’d rule out the possibility of going back to the ballot in 2014 at this point, O’Connor replied, “Absolutely not. I wouldn’t rule it out. That’s definitely a possibility that we’ll be considering.”

Similarly, a decision upholding DOMA would mean that Congress would have to act to repeal DOMA — mostly likely using the Respect for Marriage Act as the vehicle to undo the law. That would be a difficult task as long as Republicans remain in control of the House.

Rep. Jerrold Nadler (D-N.Y.), the chief sponsor of the Respect for Marriage Act, said in a statement he intends to work with Congress to build support for the legislation even before the court renders a decision on DOMA.

“As the Supreme Court reviews DOMA, I will continue to spearhead the participation of Members of Congress who believe that DOMA is unconstitutional in the Windsor case,” Nadler said. “At the same time, I will keep working with my colleagues to increase support for the Respect for Marriage Act, my bill to repeal DOMA and remove official discrimination from our legal code.”

3. Will the U.S. government weigh in on the Prop 8 lawsuit?

Amid news that the Supreme Court will take up the Prop 8 lawsuit, a new call has emerged for the Obama administration to weigh in on the lawsuit to assert a constitutional right for same-sex couples to marry.

Ted Olson, co-counsel for plaintiffs in the Prop 8 case, said during the conference call last week that participation from the Obama administration in the litigation would have “great effect” on the outcome of the case.

“I would hate to predict what the United States government is doing, but given the stand the president of the United States and the attorney general of the United States made with respect to marriage equality, we would certainly hope that they would participate,” Olson added.

Although President Obama asserted his personal view in May that same-sex couples should be able to marry, the Obama administration hasn’t yet answered the question of whether that’s a guaranteed right under the Constitution. The Obama administration could participate by filing a friend-of-the-court brief along with other parties, or less likely, by asking to intervene in the case.

Asked Tuesday during a White House press briefing about the Obama administration’s position on the Prop 8 case, White House Press Secretary Jay Carney declined to comment, saying, “For comment on the court’s actions on that case, I would point you to the Department of Justice. As you know the administration is not a party in that case, and I just have nothing more for you on it.”

Following the briefing, Tracy Schmaler, a Justice Department spokesperson, told the Washington Blade, “No updates at this point.”

Richard Socarides, a gay New York advocate who’s called on Obama to take an active role in supporting marriage equality, said arguing in favor of the constitutional right to marry — for all states and not just California — is “a logical extension” of the position already articulated by the administration when it determined DOMA was unconstitutional.

“If you apply that [heightened scrutiny] test that they advocate to any of the 30 states that have constitutional amendments that ban gay marriage, then all of those state amendments go out the window,” Socarides said. “So, obviously, that’s very important to us, and that’s the government position, and I think it’s important that they say so clearly rather than trying to duck it.”

Additionally, Socarides said the Obama administration won’t be able to run from the issue because justices will likely ask U.S. Solicitor General Donald Verrilli Jr. or whomever is representing the administration during oral arguments about its position on Prop 8.

“They’re kidding themselves if they don’t think some judge isn’t going to ask them,” Socarides said. “During the argument of the DOMA case, [Samuel] Alito or [Clarence] Thomas or [John] Roberts or [Antonin] Scalia is going to say to them, ‘If we apply the test you are advocating to Proposition 8, what would happen?’ They’re going to get asked this question. That’s what’s silly about this.”

Lambda’s Davidson agreed that a friend-of-the-court brief from the Obama administration would have an impact on the Supreme Court.

“They’re more likely to read a brief from the solicitor general than from other parties,” Davidson said. “And I think that they care what another branch of government says to them, so I think it will be significant. I don’t think they will decide a certain way just because the executive branch says so. They will make up their minds, but to have one branch of government telling another what they think the outcome would be, they’d pay attention to that.”

But the notion that participation from the Obama administration would be helpful to convincing justices to overturn Prop 8 isn’t universal.

Nan Hunter, a lesbian law professor at Georgetown University, said the Justice Department has articulated that laws related to sexual orientation should be subjected to heightened scrutiny and an additional brief wouldn’t have much sway.

“I don’t really think it makes much difference, frankly, to the court,” Hunter said. “The political alignment of the Obama administration is very clear on this, so I don’t really think it’ll make much difference.”

4. What happens if the Supreme Court denies standing to anti-gay forces in the lawsuit?

In addition to announcing that it would take up cases challenging Prop 8 and DOMA, the Supreme Court also called for attorneys involved in the lawsuit to answer questions about whether certain parties involved in the lawsuit have standing to present their views before the court. The standing issue will be resolved as part of the final ruling the Supreme Court makes before its term expires in June.

For the Prop 8 case, the standing question is singular: Do anti-gay groups that helped pass Prop 8 at the ballot have the right to defend the law in court because California Gov. Jerry Brown and Attorney General Kamala Harris have declined to do so? That was the opinion of the Ninth Circuit, which determined ProtectMarriage.com could defend the law after the group’s standing was certified by the California Supreme Court.

But in the DOMA case, there are issues of standing on both sides. The court asks parties to respond to whether the court has standing to hear the DOMA case because the U.S. Justice Department, the party that won the case at the district court, appealed the case as opposed to the losing side. Additionally, the court asks if the House Republican-led Bipartisan Legal Advisory Group — which took up defense of DOMA after the Obama administration announced it would no longer do so — has standing to defend the law.

The questions open up the possibility for the Supreme Court to strike down Prop 8 on technical grounds without getting into the merits of the anti-gay ban. It could assert that anti-gay groups don’t have standing to defend the law, nullifying the Ninth Circuit decision and leaving in place retired U.S. District Judge Vaughn Walker’s decision finding that same-sex couples in California have a guaranteed right to marry under the U.S. Constitution.

NeJaime said asking about the standing issue in the Prop 8 case may be an attempt for the court to open the door to striking down the same-sex marriage ban without ruling on the merits of the case.

“This court has been interested in standing for a long time,” NeJaime said. “The conservatives on the court have consistently cut back standing, so it’s not shocking to me that the court is at least interested in that standing question, and I also think it could be slightly strategic so that there is this other issue in the case that would allow the court to avoid a ruling on the merits if they decided that they don’t want to do that.”

The question of what would happen if parties lack standing in the DOMA case gets a little murkier because the issue affects both the plaintiffs (the Justice Department) and the defendants (BLAG). On Tuesday, the Supreme Court announced that it had hired Vicki Jackson, a Harvard lawyer, to argue that neither the Obama administration nor BLAG have standing to petition the court in the case.

Still, the consensus among legal experts is that justices would likely conclude both parties have standing in the DOMA case to evaluate the law on its merits, even though many raised questions about BLAG because it’s a five-member committee and not reflective of the position of Congress, or even the House, as a whole.

Hunter said precedent exists for the Supreme Court to hear a case in which the Justice Department has declined to defend a law and members of Congress have taken up defense of the statute instead.

“The reason here that I think five members of the court will reach the merits in the DOMA case is that the practical necessity for them to do so is just overwhelming,” Hunter said. “I just don’t see them allowing a federal statute to just kind of evaporate in this situation without consideration of the merits. I’m cautiously optimistic that when they do consider the merits, they will find DOMA unconstitutional, but my hunch is that the standing question is more likely to end up being important in the Prop 8 case than it will be in the DOMA case.”

5. What would happen if the Supreme Court applied heightened scrutiny to its ruling?

Another outcome in the cases that would be beneficial to the LGBT community is a determination by the Supreme Court that laws related to sexual orientation should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional.

The Supreme Court has never declared that laws related to sexual orientation should be subjected to a higher level of scrutiny as it has for race, national origin, gender and alienage even in high-profile cases such as Lawrence v. Texas, which struck down state sodomy laws throughout the country, and Romer v. Evans, which struck down Colorado’s anti-gay Amendment 2. Still, the belief that sexual orientation laws merit this level of scrutiny is the view held by the Obama administration and the U.S. Second Circuit of Appeals, the court from which the DOMA case was appealed.

Legal experts said such a ruling from the Supreme Court in which justices applied heightened scrutiny would benefit lawsuits challenging other anti-gay laws throughout the country — whether they be the Arizona law stripping away domestic partner benefits from state employees or the Tennessee law prohibiting municipalities from passing non-discrimination ordinances.

While it seems that making a decision on laws related to sexual orientation are subjected to heightened scrutiny would automatically institute the first outcome enumerated in this piece — the invalidation of all restrictions throughout the country — legal experts say that might not be the case.

NeJaime said the application of heightened scrutiny in the DOMA case would make it more likely for them to strike down Prop 8 as well, but it wouldn’t necessarily apply to same-sex marriage bans elsewhere.

“They could apply heightened scrutiny to Prop 8, which they could frame as a very specific question, and then it would take a future case to apply heightened scrutiny to some marriage ban, like a ban in Arkansas where there’s no domestic partnership,” NeJaime said.

Some observers have speculated that the Supreme Court selected the Windsor case as the vehicle to determine the constitutionality of DOMA because that’s the only case in which a federal appeals court has ruled the anti-gay law is unconstitutional by applying heightened scrutiny to the statute.

But Hunter disputed that notion and said the decision to take up Windsor is the result of U.S. Associate Justice Elena Kagan’s involvement in the other lawsuit in which an appeals court made a ruling against DOMA — the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services — when she was U.S. solicitor general and the Obama administration was still defending the law in court.

“What makes the most sense is to have all nine justices participate in that decision, and Kagan can’t participate in Gill.” Hunter said. “I think they were waiting for a second court of appeals to produce an opinion, and I think they would have taken whatever case wasn’t Gill. It was sort of anything but Gill, and that’s purely because of the Kagan recusal problem.”

Supreme Court, gay marriage, same sex marriage, marriage equality, Proposition 8, Defense of Marriage Act,

(Washington Blade photo by Michael Key)

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Two anti-LGBTQ bills die in Va. Senate

Democrats maintain 21-19 majority in chamber

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The Virginia Capitol (Washington Blade photo by Michael Key)

Two anti-LGBTQ bills died in the Virginia Senate on Thursday.

A Senate Education subcommittee voted against state Sen. Travis Hackworth (R-Tazewell County)’s Senate Bill 20, which would have eliminated the requirement that school districts must implement the Virginia Department of Education’s transgender and non-binary student guidelines.

The Senate General Laws and Technology Committee in an 8-7 vote tabled state Sen. Mark Peake (R-Lynchburg)’s Senate Bill 177, a religious freedom measure that critics contend would have allowed anti-LGBTQ discrimination in housing.

Virginia’s statewide nondiscrimination law includes sexual orientation and gender identity. Peake’s bill would have removed “the provision of the exemption for religious organizations under the Virginia Fair Housing Law that denies such exemption where the membership in such religion is restricted on account of race, color, national origin, sex, elderliness, familial status, sexual orientation, gender identity, military status, or disability.”

The General Assembly’s 2022 legislative session began on Jan. 12 with Republicans in control of the House of Delegates. Republican Gov. Glenn Youngkin took office three days later.

Democrats, who maintain a 21-19 majority in the state Senate, have vowed to block any anti-LGBTQ bill.

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Department of Education investigating BYU LGBTQ+ discipline policy

“They’ve wronged marginalized communities at BYU and they need to be held accountable for it” ~ former gay student at BYU

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Bradley Talbot, a former gay student at BYU (Photo courtesy of Bradley Talbot)

PROVO, Ut. – The U.S. Department of Education has opened an investigation into policies at Brigham Young University (BYU) that discipline LGBTQ students, aiming to determine whether or not the private religious school, owned by the Church of Jesus Christ of Latter-day Saints (LDS), is violating their civil rights. 

The Education Department is investigating a complaint that came after BYU removed rules banning “homosexual activity” from its honor code in 2020, only to clarify weeks later that same-sex partnerships were still prohibited.

The probe, which opened in October of last year, will focus on Title IX, a law prohibiting universities from discriminating against students and others based on gender. 

Last year, President Joe Biden signed an executive order mandating every federal agency, including the Education Department, clarify that civil rights laws protect LGBTQ people from discrimination. However, religious schools have Title IX exemptions, making federal scrutiny rare.  

“It’s really significant that investigators are stepping in now,” Michael Austin, a BYU alumnus and vice president at the University of Evansville, told the Salt Lake Tribune. “It means there’s some reason to think the university has gone beyond the religious exemptions it has and is discriminating even beyond those.”

The investigation, headed by the Office of Civil Rights within the department, seems to be about whether faith-based exemptions apply even if the behavior is not directly related to education or expressly written in the honor code. BYU also bans alcohol, beards and piercings, among other things. 

BYU did not respond to the Blade’s request for comment. But a spokesperson told the Associated Press that the school does not anticipate any further action because “BYU is exempt from application of Title IX rules that conflict with the religious tenets” of the LDS.

Though the LDS has softened some of its rules around LGBTQ issues, the church remains opposed to same-sex marriage and sex outside of marriage. 

In a November 2021 letter to the Education Department, Kevin Worthen, president of BYU, argued that religious exemptions do apply to the school. The letter adds that all BYU students, faculty, administrators and staff “‘voluntarily commit to conduct their lives in accordance with the principles of the gospel of Jesus Christ.’”

The Department of Education responded to the letter, affirming that the university has some religious exemptions, but the department had to investigate if the complaint falls under those exemptions. 

An Education Department spokesperson confirmed the investigation to the Blade but declined further comment. 

Queer students at BYU celebrated the school’s removal of the anti-LGBTQ language in the honor code. Yet, the university announced weeks later that there was “some miscommunication” as to what the changes meant, clarifying that “the principles of the Honor Code remain the same.”

Bradley Talbot, a former gay student at BYU, was on campus during the apparent reversal, saying it “instilled a lot of fear and a lot of students.” 

“There are still a lot of feelings of betrayal and apprehension around it,” he told the Blade.

At BYU, students who hold hands or kiss someone of the same sex can face punishment, including expulsion. LGBTQ+ students face harsher discipline than heterosexual couples at the school. 

Talbot said he knew of “quite a few people” who lost their degrees and were kicked out during his time at BYU because of the gay dating ban. “People were turned in by roommates. Some people were turned in by their own parents,” he added. 

Courtesy of Bradley Talbot

The university’s clarification frustrated LGBTQ students, according to Talbot. In response, he organized a demonstration in March of 2021, lighting the “Y” that sits above BYU’s campus – one of the school’s oldest traditions – in rainbow Pride colors on the one year anniversary of the university’s letter sent to students that clarified the LGBTQ dating policy. 

“We did it to reclaim that traumatic day and spin in a positive light of support, love and unity to create more visibility and awareness,” said Talbot. “And also to take a stand that we weren’t going to put up with just being tossed around by BYU. We deserve to be a part of the BYU community and a part of the LGBTQ community.”

The school has since updated its policies, banning protests and other demonstrations on Y Mountain, where Talbot staged his demonstration, in December of last year. 

“Demonstrations should be consistent with BYU’s faith-based mission, intellectual environment and requirements described in the policy,” a statement added. 

Still, Talbot, who is now graduated, has hope that the Education Department’s investigation will “finally change” things at BYU. “This has been something that’s been going on for decades,” he said. “They’ve wronged marginalized communities at BYU and they need to be held accountable for it.”

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LGBTQ advocates fight on for trans athletes, but they may be losing the battle

Transgender women competing in women’s sports remains unpopular in polls

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From left, Lia Thomas, Caitlyn Jenner and Michael Phelps. (Screen capture of Thomas via YouTube, Washington Blade photo of Jenner by Michael Key, photo of Phelps by kathclick via Bigstock)

In the wake of the NCAA changing its policies regarding transgender athletes and state legislatures advancing new legislation against trans inclusion in school sports, LGBTQ advocates continue the fight to ensure athletes can compete consistent with their gender identity, although they may be losing the battle.

As public polling has demonstrated, transgender athletes competing in sports — especially trans women in women’s sports — remains unpopular even among pro-transgender people. Key figures have emerged in recent days opposing transgender inclusion amid the focus on Lia Thomas, a recently transitioned swimmer at the University of Pennsylvania who has been smashing records in women’s aquatics.

Nonetheless, LGBTQ advocates charged with fighting for transgender rights are continuing the efforts. After a coalition of LGBTQ advocates sent a letter to the NCAA urging the organization to include a non-discrimination provision in its updated constitution, the Human Rights Campaign condemned the organization for refusing to keep the language, which appears to have the effect of allowing the sports division to decline to allow transgender athletes to compete consistent with their gender identity, and sent an action alert to supporters.

Joni Madison, interim president of the Human Rights Campaign, said in a statement the NCAA “needs to show us their playbook for protecting LGBTQ+ and specifically transgender athletes from discrimination” as state legislatures advance legislation against transgender kids in sports.

“The NCAA has so far proven to be an unreliable ally to LGBTQ+ athletes across the country who depend upon the organization to protect them from discrimination and now they owe these athletes answers,” Madison said.

Instead of reaffirming non-discrimination protections, the NCAA announced a change in policy that goes in different directions but appears aimed at limiting participation of transgender women without taking full responsibility for it. On one hand, the NCAA delegates to the bodies governing individual sports the policies for transgender participation, but on the other hand requires transgender women to document having limited testosterone levels over a certain period of time.

The fight now continues in state legislatures as sports bills are among the latest crop of measures seeking to limit access for transgender people. After South Dakota Gov. Kristi Noem made a push for legislation against transgender kids in sports at the start of the year, the state legislature responded by advancing such a measure. On Wednesday, a South Dakota House committee favorably reported out legislation already approved by wide margins in the Senate that would make biological sex the standard for sports in an attempt to limit transgender participation.

Sam Ames, director of advocacy and government affairs at The Trevor Project, said in a statement upon the committee vote the legislation “has nothing to do with fairness — and everything to do with South Dakota politicians using transgender youth as pawns on a political chessboard.

“Proponents of this blanket ban are hard-pressed to find examples of transgender students making South Dakota sports less fair or safe,” Ames said. “Research from The Trevor Project makes clear that many already opt out of sports due to fear of bullying and discrimination.”

Although the issue of transgender women in sports has emerged in recent years as conservative activists found a way to challenge LGBTQ rights in a way that was palatable to the public, the fervor peaked as Thomas made headlines for breaking records in the pool.

After having previously competed in men’s aquatics, Thomas — after she transitioned — began competing in women’s events and was beating her competitors by wide margins. In one event in December, Thomas came in first in the 1,650-yard freestyle and 38 seconds ahead of her closest competitor. The NCAA rules would appear to have the effect of barring Thomas from further competition.

Public polling, which has shown strong support for LGBTQ rights in general, continues to show the sentiment is against transgender women competing in sports, although the outcome of the poll can change considerably depending on the wording of the question. One Gallup poll last year found only 34 percent of those surveyed supported transgender athletes participating on teams consistent with their gender identity, while 62 percent said transgender people should have to compete with other athletes of their gender designated at birth.

One LGBTQ strategist, who agreed to speak on condition of anonymity, said the time may have come for LGBTQ advocates to admit a fait accompli if they want to seek broader civil rights protections in employment, housing and public accommodations with the Equality Act or other federal legislation.

“Advocates should just admit this is a very different issue than a trans person applying for a job or finding an apartment,” the strategist said. “Equality principles differ by situation — that’s why we have separate men’s and women’s sports in the first place. The same public opinion overwhelmingly supportive of the Equality Act is also clearly skeptical of a one size fits all federalization of all sports everywhere.”

Adding fuel to the fire are recent comments from key figures in athletics.

Caitlyn Jenner, who before she transitioned was an Olympic champion in the 1970s, has been among the more prominent voices to speak out against transgender women in sports and said on a recent appearance on Fox News it represents “a woke world gone wild.”

Jenner, who came out against transgender participation in sports during her unsuccessful gubernatorial campaign last year in the California recall election, said the NCAA “just kicked the can down the road” on the transgender sports issue and had choice words for Thomas.

“When you do transition and you do go through this, you have to take responsibility and you have to have integrity,” Jenner said. “I don’t know why she’s doing this.”

Michael Phelps, the decorated Olympic swimmer, also declined to support transgender athletes fully when asked about the issue during an interview on CNN, bringing up doping in sports in comparison.

“I don’t know what it looks like in the future,” Phelps said. “It’s hard. It’s very complicated and this is my sport, this has been my sport my whole entire career, and honestly the one thing I would love is everybody being able to compete on an even playing field.”

To be sure, advocates for allowing transgender people to compete in sports consistent with their gender identity also have their supporters in the sports world, including tennis legend Billie Jean King. On Monday, Dorian Rhea Debussy, who’s non-binary and one of 54 facilitators in the NCAA Division III LGBTQ OneTeam program, resigned in protest over recent NCAA actions.

“I’m deeply troubled by what appears to be a devolving level of active, effective, committed, and equitable support for gender diverse student-athletes within the NCAA’s leadership,” Debussy said. “As a non-binary, trans-feminine person, I can no longer, in good conscience, maintain my affiliation with the NCAA.”

Arguably, schools complying with the new NCAA policy and states enacting anti-transgender laws would be violating Title IX of the Education Amendment of 1972, which prohibits discrimination on the basis of sex in education, especially after the U.S. Supreme Court’s ruling in Bostock v. Clayton County finding anti-transgender discrimination is a form of sex discrimination.

One federal court last year blocked a West Virginia state law against transgender participation in sports on that legal basis. No litigation, however, appears to be in the works at this time challenging colleges or the NCAA policy.

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