Biden DOJ Declares Transgender Legislation in These States 'Unconstitutional'


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 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 both Arkansas’ 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.

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“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 DOJ added.

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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.

Not only would it interpret protections in the Civil Rights Act to ban discrimination against gay and transgender students under Title IX, but it would also 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.”

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“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.”

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