A Wyoming-based LGBTQ advocacy group is preparing a lawsuit challenging the recently passed Student Eligibility in Interscholastic Sports bill, which bans biological males from participating in girls’ sports in Wyoming.
Wyoming Equality announced on Facebook its director, Sara Burlingame, is “hard at work preparing for the forthcoming” lawsuit.
Burlingame hadn’t responded to Cowboy State Daily’s request for comment about the lawsuit by the time this story was posted.
A lawsuit could likely challenge the legality and constitutionality of the transgender sports participation bill, Senate File 133.
Gov. Mark Gordon allowed it to pass into law without his signature earlier this month, describing it as “discriminatory” and “draconian,” but also a positive for fair competition. The law is set to go into effect July 1, impacting sports participation beginning in the 2023-2024 school year.
Wyoming Equality fervently opposed SF 133 during the recent session of the Wyoming Legislature, holding a rally outside the Capitol in Cheyenne in February on the first day it was considered in the state House.
The bill passed through House on a 51-10-1 vote and by an equally large margin in the Senate, 28-3.
State Sen. Wendy Schuler, R-Evanston, who sponsored the bill, told Cowboy State Daily that although she finds it “unfortunate” Wyoming Equality is planning to file a lawsuit, she also said members of the organization had already warned her that they would.
Schuler said a lawmaker cannot decide whether or not to bring legislation based on the likelihood it could be challenged in court.
“In our country, I think we waste a lot of money with lawsuits,” Schuler said.
Schuler said she tried to work with Wyoming Equality and similar groups when crafting the legislation, sometimes finding a happy compromise and sometimes not.
“It wasn’t for a lack of trying,” Schuler said.
An earlier version of the bill included $1 million for the state to defend itself against potential litigation, but that provision was stripped during the legislative process.
What It Does
SF 133 bans biological males from participating in girls school sports in grades seven through 12.
Similar laws around the country are being challenged in court, most on the grounds they violate equal protection rights for transgender people.
Supporters of SF 133 have argued it guarantees fair competition in female sports.
There have been instances in recent years of transgender females setting records in girls’ and women’s sports, and one of the inspirations for the bill was a parent who complained about a Wyoming high school transgender female qualifying for the state track meet.
Schuler said she respects Wyoming Equality and Burlingame, and doesn’t see her legislation as “anti-trans.”
“It’s all about fairness and having an equal competitive field,” she said. “I think a lot of Wyoming folks would agree.”
SF 133 contains an alternate provision that would become effective if a court were to block or overrule the ban.
In that event, the Wyoming High School Activities Association would appoint an independent board to review transgender athlete appeals on a case-by-case basis.
“I feel good about getting the commission in there,” Schuler said.
But the commission and avenue for transgender females to compete would only open if a court overrules the ban.
This is somewhat similar to the WHSAA’s current policy on transgender athletics, leaving it up to individual schools to determine eligibility when making these types of reviews. Not one of those cases has been appealed to WHSAA in the nine years.
Earlier this month, Burlingame told Cowboy State Daily she was talking with two families with transgender youth athletes about the possibility of joining in on the lawsuit.
Burlingame said doing so would be challenging for the families, as the adolescent athletes would likely be subjected to intense public scrutiny.
“It’s heavy,” Burlingame said. “And it’s humbling that we have two families who have stepped forward. They are Wyoming families. They believe that liberty belongs to them as a birthright.”
SF 133 was one of three highly controversial bills Gordon allowed to pass into law this month from the 2023 legislative session, and the only of the three to have not yet been challenged in court.
Already challenged has been House Bill 152, which makes most forms of abortion illegal in Wyoming, and SF 109, which makes the prescription of chemical abortion pills illegal in Wyoming.
Last week, 10th Judicial District Court Judge Melissa Owens ordered a temporary hold on HB 152, which had already gone into effect. Owens said she needs to study whether abortion is considered health care in the Wyoming Constitution.