Washington AG outsources defense of trans sports ban to outside firm amid lawsuit

Key points

• Attorney General Nick Brown declined to defend Initiative 638 personally, citing conflicts of interest and the need to continue defending transgender rights in other areas.
• The initiative, passed by 56% of voters, requires girls to verify their birth sex through medical tests before participating in girls' sports.
• A coalition including the ACLU, Legal Voice, and Pacifica Law Group filed a lawsuit in King County Superior Court to block the measure from taking effect on December 3.
• Plaintiffs argue the initiative violates the state constitution by imposing intrusive sex verification requirements on girls but not boys.
• Supporters, including Let’s Go Washington, argue the ban preserves fairness and integrity in girls' sports, while opponents describe the verification process as invasive and discriminatory.

Background

Initiative 638 was approved by Washington voters in the November 3, 2026 election, marking a significant shift from the state's previous policy of allowing students to compete on teams aligned with their gender identity. The measure was championed by the conservative group Let’s Go Washington, which also lost two other ballot initiatives. The initiative takes effect on December 3, the deadline for the secretary of state to certify election results. The lawsuit seeks to block the measure before it takes effect, arguing it violates privacy and equal protection laws. The Washington Interscholastic Activities Association, which led the nation in allowing transgender athletes to compete, has stated it will follow state law and make necessary changes by December 3.

How outlets are covering it

Conservative critics, including Brandi Kruse and Jim Walsh, argued that Brown's office faced conflicts of interest due to its previous stance on transgender athletes and his former law firm's involvement in the lawsuit. Brown described the decision as a common step to address conflicts of interest or workload issues, emphasizing that his personal views do not dictate the strength of the defense. The ACLU and other plaintiffs argue the initiative is discriminatory and violates privacy rights, while supporters like Let’s Go Washington claim the ban protects girls' sports and spaces. John Curley, a KIRO Newsradio host, questioned the Seattle School Board's legal action, arguing that a court blocking the initiative would collide with the will of the people. Darren Littell of Let’s Go Washington dismissed the lawsuit's claims as based on false assumptions, stating that doctors are already aware of a student's gender identity and that the verification process does not violate privacy.

Why it matters

The outcome of this legal challenge could set a precedent for transgender rights in school sports across the United States. The initiative's implementation would require girls to undergo medical tests to verify their birth sex, a process opponents argue is invasive and discriminatory. The decision by the Attorney General to outsource the defense highlights the tension between defending voter-approved measures and maintaining consistency with previous legal positions on transgender rights. The case also raises questions about the balance between individual privacy and the fairness of sports competitions, with potential implications for other states considering similar measures.

What to watch

The lawsuit seeks to block Initiative 638 from taking effect on December 3. The Washington Interscholastic Activities Association will determine how to align public school sports rules with the new law if it takes effect. The Attorney General's office will continue to defend transgender rights in other areas, while the outside firm Bryan Cave Leighton Paisner will handle the defense of Initiative 638. The outcome of the lawsuit could influence future legislative and legal actions regarding transgender rights in school sports across the country.