State Gender Ideology Laws Under Scrutiny in Federal Courts

April 18, 2024 | Washington, D.C.

by Tabitha Walter, Executive Director, Eagle Forum

Several courts are dealing with the issue of gender ideology again.  There have been two important rulings recently – one that deals with protecting kids from “medical transitioning” and the other on protecting girls’ sports. Both cases address state laws and these decisions could have serious implications for other state efforts. 

Last year, the Idaho legislature passed and signed into law the Vulnerable Child Protection Act, a law that bans minors from receiving puberty blockers, cross-sex hormone, and genital mutilation surgeries and creates a felony charge for those who knowingly participate in these actions. Two families with transgender minors sued the state in an attempt to keep the law from going into effect. A federal district court blocked the law citing equal protection and due process issues. Then, the 9th U.S. Circuit Court of Appeals rejected the state’s appeal. The Attorney General sent an emergency request to the Supreme Court asking it to overturn the 9th circuit and allow the law to go into effect for everyone but the two families suing Idaho. The Supreme Court agreed.

In the majority opinion, Justice Neil Gorsuch argued that the universal injunction the litigant families sought was too broad. While the families alleged that their children would “likely suffer serious mental health problems” without access to puberty blockers and estrogen, the law covers additional actions such as surgeries. Since neither family requested to access those types of medical interventions, Gorsuch explained that there was no need to stop the entire law from taking effect.  The underlying case – whether the Idaho law will be allowed to stand – is still working its way through the courts, but in the meantime, kids in Idaho are safe.

Idaho isn’t alone in its efforts to safeguard the health and futures of its kids. Twenty-five states have passed laws to shield children from dangerous gender ideology, including measures on parental rights, school curriculums, and bathroom access in addition to medical ‘treatment’.

Protecting Women’s Sports

Another gender identity issue – protecting women’s sports – may be headed to the Supreme Court as well.  B.P.J. vs. West Virginia State Board of Education centers around the Save Women’s Sports Act passed by the state of West Virginia in 2021. The law bans biological males from playing female sports in high schools and colleges. Shortly after being signed into law, the American Civil Liberties Union (ACLU) West Virginia filed a lawsuit on behalf of a 13-year-old biological boy who thinks he is a girl who wants to participate on his middle school girls’ track team. The ACLU argued that since he has been living as a girl since third grade and is taking puberty-delaying medication, the issue of testosterone’s effect on increased speed and strength would not apply.

While the ACLU addresses one concern that those who object to male participation in female sports have, they ignore the litany of other adverse consequences. This boy will have access to girl’s locker rooms, showers, and bathrooms. Girls, especially at this age, are not comfortable being exposed to male genitalia and desire privacy for their own modesty. Not to mention the irreparable damage this boy has suffered mentally and physically at the hands of adults who are pushing a fanatical agenda.

This week, the 4th U.S. Circuit Court of Appeals ruled in a 2-1 decision to strike down West Virginia’s law. Judge Toby Heytens stated in the majority opinion that offering this child “a ‘choice’ between not participating in sports and participating only on boys’ teams is no real choice at all” and would expose him to “unfair competition” and “physical danger.” He even accuses the law’s proponents of “shielding cisgender girls.”

Judge G. Steven Agee, the only dissenter, spoke sharply against the majority ruling. He stated in his opinion:

Ignoring what would seem to be clear law, the majority ensures that policy preferences prioritizing transgender persons take precedence. But where will this Court, or any court, draw the line? Bostock allegedly drew the line at employment decisions under Title VII. Grimm was specific to bathrooms. Yet, here we are again, miles away from the straightforward text of the laws we are called to apply, judicially rewriting the Equal Protection Clause and nullifying Title IX’s promise of equal athletic opportunity for women.

Further in his opinion, he calls these actions a “runaway train” and asserts that the drafters of the Equal Protection Clause and Title IX never intended these results. West Virginia Attorney General Patrick Morrisey has promised to challenge the decision.

Eagle Forum is committed to the protection of children’s bodies, their privacy, their mental and physical health, and their ability to compete fairly. We are actively working on laws and policies at the federal and state levels. Join Eagle Forum today to learn more and to get involved in your area. And you can support Eagle Forum PAC to help us elect more Members of Congress who will fight to protect our children.