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A judge recommended dismissing a federal lawsuit brought by several Colorado school districts that challenged the state’s antidiscrimination law on the grounds that it violates students’ rights by allowing transgender youth to play on school sports teams that match their gender identity.
The Jan. 13 recommendation by U.S. Magistrate Judge Maritza Dominguez Braswell is a tentative win for state officials and a loss for the eight plaintiffs, which include four school districts, three charter schools, and one public education cooperative. A federal district court judge will now review the recommendation and make a final decision.
The lawsuit was spearheaded last spring by the conservative-leaning District 49 near Colorado Springs, after its school board passed a policy banning transgender girls from girls sports teams and transgender boys from boys sports teams.
The recommendation came the same day that the U.S. Supreme Court heard arguments in cases brought by two transgender athletes who oppose state laws barring transgender athletes from girls and women’s teams.
The high court’s conservative-leaning majority seemed open to upholding the state laws, according to national news outlets, but how broad or narrow such a ruling would be remains to be seen.
One of the defendants in the Colorado case, the Colorado High School Activities Association, settled with the districts and charter schools in early December.
Dominguez Braswell’s recommendation, even if it’s affirmed by a district court judge, may not have much effect on high school sports in Colorado, because it doesn’t directly weigh in on the legitimacy of policies that ban transgender students from joining sports teams that match their gender identity. Rather, it says the districts and schools that filed the lawsuit don’t have the standing to sue the state on their own behalf or to sue on behalf of their students.
Michael Francisco, an attorney with the law firm First & Fourteenth, which is representing the plaintiffs, said he disagrees with Dominguez Braswell’s recommendation and looks forward to filing objections with the district court judge soon.
“This recommendation will not alter the course of this case or deter us from continuing this litigation to ensure every district in Colorado has the freedom to protect girls’ sports, safeguard student privacy, and uphold the spirit of Title IX,” he said in an emailed statement.
A spokesperson for the Colorado Attorney General’s office declined to comment Friday.
A number of Colorado districts have policies that allow transgender students to join sports teams consistent with their gender identity. Others make decisions on a case by case basis. Some, including the districts and schools that sued, recently passed policies barring transgender students from playing on teams that match their gender identity.
In their lawsuit, the districts argued that the state’s antidiscrimination law, which includes protections for transgender people, put the districts in an “untenable position” because they risked state penalties over their transgender athlete policies.
In her recommendation, Dominguez Braswell said settled legal principles prohibit the districts from bringing claims against the state based on the U.S. Constitution’s 14th Amendment. She also took issue with the plaintiffs’ claim to represent the interests of all district students.
The plaintiffs brought two of their claims on behalf of all students, she noted, “but their interests do not align with all students.”
She said the districts’ policies barring transgender students from certain sports teams “cut against the interests of transgender students” and “may also cut against the interests of students who seek inclusivity in school-sponsored activities.”
In addition to the 26,000-student District 49, the plaintiffs include Colorado Springs 11, Academy 20, Montezuma-Cortez, James Irwin Charter Schools, Monument Academy, The Classical Academy, and Education reEnvisioned Board of Cooperative Education Services.
The defendants in the case were Colorado Attorney General Phil Weiser, the Colorado Civil Rights Division, and the Colorado High School Activities Association.
When the districts settled with the Colorado High School Activities Association in early December, the association agreed not to sanction plaintiff schools or teams over their transgender athlete policies. The settlement also required the plaintiffs to pay the activities association $60,000.
The association’s bylaws for years recognized the right of transgender athletes to participate on sports teams that match their gender identity and stated that the group can review district decisions on such matters.
But the group had never penalized a school or district for policies on transgender athletes or dictated what those policies should say, an association spokesperson said in December.
Ann Schimke is a senior reporter at Chalkbeat. Contact Ann at aschimke@chalkbeat.org.
