Wyoming’s transgender athlete ban goes unchallenged in court

When Gov. Mark Gordon let legislation prohibiting transgender girls from competing in middle and high school girls’ sports become Wyoming law without his signature in March 2023, both opponents and supporters of the ban expected to go to court. 

Wyoming Equality, the state’s largest LGBTQ+ advocacy group, said it was in talks with local and national partners in preparation for litigation, according to the Casper Star-Tribune. 

The legislation itself incorprated a court-challenge contingency plan. 

In the event the ban was suspended or struck down altogether, a five-member school activity commission would be responsible for determining the eligibility of transgender students on a case-by-case basis. 

But one year since the ban’s enactment it has yet to have its day in court. 

“The part that we always knew was hard — and hard on multiple levels — was asking a child to undergo this harrowing process,” Sara Burlingame, executive director of Wyoming Equality, told WyoFile. “[Going to court is] not easy. That’s a heavy lift,” 

Four transgender students were competing in Wyoming’s school athletics when the Legislature passed the ban, according to the governor’s office. For various reasons, none were in a position to pursue litigation, Burlingame said. 

“They’re just like anybody else. They want to run track or downhill ski. They don’t want to be pariahs,” Burlingame said. “They don’t want to fight for every inch just for the opportunity to play.” 

Meanwhile, the legislation’s main sponsor Sen. Wendy Schuler (R-Evanston) is glad there has yet to be litigation, “at least within our state,” pointing to the Biden administration’s new Title IX regulations. 

In May, Wyoming was among several states to sue the federal government over the new regulations prohibiting the exclusion of transgender students from educational programs, such as sports, on account of their gender. The new regulations have been blocked by a federal court in several states

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Burlingame said her organization was always confident that if the ban went into effect the law would ultimately be on their side in a court challenge.

“If you’ve looked at the recent rulings in Tennessee and elsewhere, that’s right. Like the law says, ‘you can’t actively discriminate against some folks,’” Burlingame said. Finding a plaintiff, she added, was the challenge. 

Out of the four families dealing with the ban, one stepped forward last year with an interest in litigation. But that fell through after their child decided to stop participating in sports, Burlingame said.

Not wanting to speak too much on behalf of the student and their family, Burlingame said the sports ban was at least part of that decision.

The fact that the ban applies to so few students shows the Legislature’s priorities are out of whack, Burlingame said, since it “decided targeting these four kiddos instead of balancing the budget or investing in our roads and bridges was the way to whip up a frenzy.”

Schuler said she believes the governor’s estimate of four students was low. 

“I think it’s at least twice that from what I had heard from various people around the state,” Schuler said. 

But either way, she stands by the ban. 

“I know the numbers aren’t great, but to me it doesn’t matter if it’s one or if it’s ten,” Schuler said. “If one biological girl is left behind because a trans athlete takes her spot it’s just wrong. It’s not fair.”

For Schuler, the legislation was also personal. A longtime athlete and coach, the lawmaker was a junior playing basketball at the University of Wyoming when Title IX was first enacted. Practically overnight, Schuler said, everything changed for the better. 

“I used to tell my high school athletes all the time, you don’t know how lucky you are that you just get to walk in here and you get the same opportunities as the guys in every way shape or form,” Schuler said. “Because there were a lot of folks back in the day that had to fight for those opportunities.” 

As for feedback, Schuler said she’s not heard any negative comments from her constituents. 

“I’ve had a lot of people just come up and thank me and just say, ‘That’s great that we got that done,” Schuler said. 

Otherwise, the ban hasn’t caused much of a stir with the Wyoming High School Sports Activities Association during its first year. 

“Since we have followed our state statute, we have not received any feedback from our schools, positive or negative,” Trevor Wilson, commissioner of the association, told WyoFile in a statement.