Alabama Attorney General Steve Marshall filed two amicus briefs last week concerning public schools' policies surrounding transgender athletes.
Led by Marshall and Arkansas Attorney General Tim Griffin, the briefs urge the U.S. Supreme Court to rule in favor of two laws mandating public school sports teams be separated by the biological sex players are assigned at birth.
The briefs, signed by 26 additional attorneys general, were filed for the cases Little v. Hecox and West Virginia v. B.P.J. In each case, plaintiffs have challenged respective laws enacted in Idaho and West Virginia, seeking to separate public school sports participation by biological sex.
The Ninth Court of Appeals held that Idaho's law violated the Equal Protection Clause of the 14th Amendment in an August 2023 ruling in Little v. Hecox.
The Fourth Circuit Court of Appeals similarly ruled against West Virginia's law in April 2024, arguing it violated Title IX by constituting sex-based discrimination against the case's transgender plaintiff.
The Supreme Court agreed in July to hear both cases.
"At the heart of these cases is a fundamental question: can states uphold laws that preserve fairness and opportunity for female athletes? The answer must be yes. Across the country, girls and women are once again being asked to overcome structural disadvantages that Title IX was designed to eliminate," Marshall said in a written statement on Friday.
"This is not about exclusion -- it's about preserving the integrity of female athletics," stated Marshall. "We must protect these opportunities because law, science, and the public will is on our side. We believe the court will be as well."
Both briefs argue that the B.P.J. plaintiffs' call for "heightened scrutiny" over whether individual transgender and intersex athletes "hold a meaningful competitive athletic advantage" inadequately protects female athletes.
"Such scrutiny is not 'heightened.' It is impossible. Under such review, schools must create sport-specific policies that protect girls' sports just enough from unfair or unsafe competition but that don't exclude all biological males from the girls' team," the Hecox brief reads.
"The Constitution does not impose such a Sisyphean task. Under the Equal Protection Clause, schools are free to offer separate sports teams for biological girls because that is how schools can provide them with an equal opportunity to compete," it continues.
Marshall's office pointed to an Alabama law, enacted in 2023, which mandates that sports participating in public K-12 and higher education institutions be separated by the biological sex of a player.
Marshall's office also highlighted the attorney general's opposition to a Biden administration rule that expanded Title IX regulations to protect against discrimination based on gender identity.
Similar briefs have been signed this month asking the court to uphold laws restricting sports participation by biological sex in their rulings on the cases by organizations such as, the American Enterprise Institute, American Civil Rights Project and New Civil Liberties Union, alongside a brief filed by U.S. Senator Jim Risch, R-Idaho; U.S. Representative Riley Moore, R-W.Va.; and U.S. Senator Shelley Moore Capito, R-W.Va.
The cases each also had briefs filed before the circuit courts' rulings, urging the presiding judges to rule against state laws, such as Idaho's and West Virginia's.
A brief supporting the plaintiffs in the West Virginia case was filed in 2020 by The National Women's Law Center, Lawyers' Committee for Civil Rights Under Law and 60 additional organizations.
"Sports participation enhances women and girls' physical health and emotional and psychological well-being, improves their educational prospects, and expands their social networks," the West Virginia case brief reads. "These benefits are especially important for girls who are transgender and intersex -- who are at heightened risk for feelings of isolation, discrimination, harassment and low self-esteem -- and they should not be excluded from these critical opportunities."
GLBTQ Legal Advocates and Defenders, as well as the National Center for Lesbian Rights, also filed a brief in the Hecox case in 2020, arguing against the Idaho law.
"The Act undermines, rather than advances, the goals it purports to serve. Rather than promoting sex equality, it discriminates against a vulnerable subset of women, and it harms all women by perpetuating unfounded stereotypes that have long fueled sexist discrimination against women in sports," their brief argues.
Alongside Marshall and Griffin, last week's briefs were signed by Republican state attorneys general from Alaska, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wyoming and Guam.
Idaho and West Virginia's attorneys general both only signed the brief addressing the case out of their state.