DOJ Memo Contradicts Michigan's Proposed Anti-Trans School Sports Legislation

Last Month Michigan Sen. Lana Theis, along with 12 Senate Republicans, introduced Senate Bill 218 that would bar transgender students from being able to participate in school sports in accordance with their gender identity — not unlike similar legislation presented in Idaho last year. Now, a Department of Justice memorandum has been released that undermines Theis' proposed legislation.

It states that the Supreme Court's LGBTQ-affirming decision that protected LGBTQ+ people from gender identity or sexual orientation discrimination in Bostock v. Clayton County is applicable to Title IX of the Education Amendments of 1972 alongside President Biden's Recent Executive Order 13988.

"'Executive Order 13988 sets out the Administration's policy that "[a]ll persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.' Citing the Supreme Court's holding in Bostock that the prohibition on discrimination 'because of . . . sex' under Title VII of the Civil Rights Act of 1964 … covers discrimination on the basis of gender identity and sexual orientation," the memo reads.

It goes on to say that the executive order explains that the reasoning in Bostock "applies with equal force to other laws that prohibit sex discrimination 'so long as the laws do not contain sufficient indications to the contrary,'" concluding that it should be applied to Title IX as well.

Jay Kaplan is the staff attorney on the American Civil Liberties Union of Michigan's LGBT Project. He says this memo is a clear argument against Senate Bill 218 because "it's clearly discriminatory" against transgender athletes.

"We already know that the federal court has weighed in on this issue and it struck down Idaho's sports law saying that it violates Title IX and that it raises Constitutional concerns," he said. "We hope that that this memo will be persuasive, but we really do believe that the impetus behind this legislation is not about trying to fix the problem and it's not based on facts."

He added that while he is confident that Michigan Gov. Gretchen Whitmer would veto Bill 218 if it crossed her desk, it's unlikely the issue is going away any time soon.

"This issue is going to be raised as a way to oppose LGBTQ civil rights, and so we do need to keep talking about this," Kaplan said. "And we need to expose the fallacy of these arguments in support of legislation like this, too."