by Mary Margaret Olohan


The Department of Justice argued in court filings Thursday that transgender legislation passed in West Virginia and Arkansas is unconstitutional.

The DOJ filed statements of interest supporting lawsuits filed by the American Civil Liberties Union (ACLU) against West Virginia’s House Bill 3293 and Arkansas’ “Save Adolescents From Experimentation Act,” otherwise known as the SAFE Act.

The West Virginia bill bans biological males at public schools from participating in women’s sports in middle school, high school, and college. The SAFE Act prohibits physicians from performing gender transition procedures, such as puberty blockers or “top” and “bottom” surgeries, on minors.

The DOJ said that both Arkansas’s and West Virginia’s laws violated the Equal Protection Clause and that the West Virginia law also violated Title IX of the Education Amendment of 1972.

“The State claims that H.B. 3293 will protect athletic opportunities for girls,” the DOJ said of HB 3293, according to the court filing. “Neither the facts nor the law supports that assertion. To be sure, there remain significant barriers to providing full equity in athletics for female students. But by permitting participation by transgender girls, who make up ‘approximately on half of one percent’ of the United States’ population, is not one of them.”

The Arkansas state legislature overrode Republican Arkansas Gov. Asa Hutchinson’s veto of the SAFE Act in April, making Arkansas the first state to ban transgender surgeries and procedures for minors. The DOJ called these procedures “medically necessary care” and said that prohibiting them “amounts to intentional discrimination against transgender minors on the basis of sex.”

The DOJ echoed the language of President Joe Biden’s administration, which has said that it will not only interpret protections in the Civil Rights Act to ban discrimination against gay and transgender students under Title IX but also that it would reinterpret “sex” in the context of healthcare anti-discrimination laws to include “sexual orientation” and “gender identity,” reversing a Trump administration policy that defined “sex” as “determined by biology.”

“For example, a minor whose assigned sex at birth was male can receive puberty-blocking medication to treat precocious puberty so that the minor can live as a boy, rather than prematurely experiencing sexual development,” the DOJ filing on the SAFE Act stated. “But a minor whose assigned sex at birth was female cannot receive puberty-blocking medication so that the minor can live as a boy, rather than developing the secondary sex characteristics of a woman. This difference in outcome is based solely on a difference in their sex assigned at birth.”

American Principles Project president Terry Schilling condemned the Biden administration moves in a Thursday statement, saying that Biden put the “rights of women and children squarely in its crosshairs.”

“Yesterday, the Department of Education all but declared war on American women and girls by announcing Title IX protections can now be enjoyed by anyone who claims to be female,” he said. “And today, the Department of Justice has declared it will oppose state-level efforts to both defend a fair playing field for girl athletes and to protect young children from being pushed into experimental procedures which permanently mar their bodies in an attempt to ‘change’ their sex. Children can’t consent to sex, so in what world can they consent to a ‘sex change’?”

“These moves are both unlawful and wildly out of step with the views of the American people,” Schilling added. “Democrats can be assured they will be forced to answer for this extremism next time voters head to the polls.”

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Mary Margaret Olohan is a reporter at Daily Caller News Foundation.




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