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California Attorney General Rob Bonta; transgender athlete AB Hernandez
The administration wants the state to discriminate against trans student athletes, which California refuses to do.
California is suing the Trump administration over its demand that the state change its transgender-inclusive school sports policy.
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The administration, through the U.S. Department of Justice, sent a letter to California officials last week asking them to certify that they do not let trans athletes in K-12 schools compete according to their gender identity. However, the state has let trans students do so for years and has no intention of changing the policy, says California Attorney General Rob Bonta. This week, the California Department of Education notified the DOJ that it will make no such certification. Doing that would violate state antidiscrimination law and the U.S. Constitution, says a press release from Bonta’s office.
Bonta filed a lawsuit Monday that he calls “pre-enforcement,” aimed at preventing retaliatory actions by the Trump administration, such as withholding or conditioning federal education funding, which amounts to billions of dollars a year. The suit was filed in U.S. District Court for the Northern District of California.
“The president and his administration are demanding that California school districts break the law and violate the Constitution — or face legal retaliation,” Bonta said in the press release. “They’re demanding that our schools discriminate against the students in their care and deny their constitutionally protected rights. As we’ve proven time and again in court, just because the president disagrees with a law, that doesn’t make it any less of one. As California’s chief legal officer, I’ll always fight to uphold and defend the laws of our state, especially those that protect and ensure the civil rights of the most vulnerable among us.”
Discrimination based on gender identity or expression has been illegal in California since 2012. In 2013, the legislature made clear that the law includes school sports. Also, the California Interscholastic Federation, the statewide governing body for school athletics, allows all students to participate in accordance with their gender identity.
In a June 2 letter to California school districts, the DOJ contended that the trans-inclusive sports policy violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. It referred to trans girls as “male.” This is in keeping with an executive order Donald Trump issued in February that threatens federal funding for states that allow trans students to compete in sports under their gender identity.
However, Bonta says the opposite is true — reversing the policy would violate the Equal Protection Clause, according to precedent from federal courts in the Ninth Circuit, which includes California. “Furthermore, allowing athletic participation consistent with students’ gender identity is squarely within the State’s authority to ensure all students are afforded the benefits of an inclusive school environment, including participation in school sports, and to prevent the serious harms that transgender students would suffer from a discriminatory, exclusionary policy,” his press release says.
Related: What does the science say about transgender women in sports?
The Trump administration’s action apparently is based on the presence of just one trans female athlete, AB Hernandez, a junior from Jurupa Valley High School. She won first- and second-place medals at the California track and field championships May 31. Before the championships, Trump had threatened the state if it allowed her to compete, although he did not mention her by name.
The California Interscholastic Federation did change a rule prior to the championships. Now cisgender girls who narrowly missed qualifying — allegedly due to the inclusion of a trans competitor — will be offered a chance to compete. A spokesman for Gov. Gavin Newsom said the change was made before Trump’s threat.
Newsom came under fire for agreeing with far-right activist Charlie Kirk in March that trans inclusion in girls’ sports is “deeply unfair.” In April, Newsom said at a press conference that the issue of trans athletes had been “weaponized by the right to be 10x, 100x bigger than it is,” while also voicing openness to conversations about finding the “right balance” conducted with “dignity” and “humanity.”
Executive order or no, Trump does not have unilateral authority to change California’s — or any state’s — policy on trans athletes. To do so would take “an act of Congress or a decision by the U.S. Supreme Court,”CalMattersnotes. “And recent court cases suggest that Trump also may have a hard time withholding money from California.” For instance, legal actions have prevented the administration from withholding funds from Maine. A fight between Trump and the state’s governor, Janet Mills, over trans athlete inclusion arose when she visited the White House in February, and she vowed to see him in court.
Hernandez seems to be unfazed by all the fuss, and she’s received support from her teammates and competitors. “They try to use intimidation tactics to push people to quit, but I’m not scared of them. They bark, but we bite,” she recently told The Guardian.“I don’t think they realized who they messed with. People say, ‘Ooh, they messed with the wrong kid.’ But at the same time, they messed with the right one. Because I’m not keeping my mouth shut.”
