PHILADELPHIA BAR ASSOCIATION RESOLUTION OPPOSING PENNSYLVANIA HOUSE BILL 972, PRINTER’S NO. 1133, AND ANY SIMILAR LEGISLATION THAT WOULD BAN GIRLS AND WOMEN WHO ARE TRANSGENDER, AND MANY WHO ARE INTERSEX, FROM GENDER-AFFIRMING PARTICIPATION IN SCHOOL SPORTS

WHEREAS, the Philadelphia Bar Association, the oldest association of lawyers in the United States, supports the protection of civil rights and the elimination of wrongful discrimination, and is committed to advancing the fair and effective administration of justice;

WHEREAS, Article 1, Section 1 of the Pennsylvania Constitution provides that all people have the right to pursue their own happiness; and

WHEREAS, Article 1, Section 26 of the Pennsylvania Constitution provides that neither the Commonwealth nor any political subdivision shall “deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right”; and

WHEREAS, Article 1, Section 28 of the Pennsylvania Constitution provides that “Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual;” and

WHEREAS, the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States protects individual dignity and autonomy;1 and

WHEREAS, the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States ensures equal rights under the law and limits governmental discrimination;2 and

WHEREAS, House Bill 972, Printer’s No. 1133 (“House Bill 972”), the so-called “Fairness in Women’s Sports Act,” would purport to define “biological sex” as “based solely on an individual’s reproductive organs, biology or genetics at birth” without medical or scientific basis or explanation;3 and

WHEREAS, House Bill 972 would mandate scholastic athletic teams to be expressly designated as “male,” “female,” or “coed” based on based on the Bill’s internal and circular definition of “biological sex;” and

WHEREAS, House Bill 972 seeks to deliberately and categorically exclude all women and girls who are transgender, and many women and girls who are intersex, from being eligible to participate in scholastic sports with other women and girls; and

WHEREAS, House Bill 972 would expose all women and girls seeking to participate in girls’ and women’s scholastic sports to a determination of their “biological sex” by unspecified means, but would not impose any similar requirement on students of any gender seeking to participate in scholastic sports designated as “male” or “coed,” which impermissibly discriminates on the basis of sex; and

WHEREAS, by design, purpose and effect, House Bill 972 seeks to categorically exclude women and girls who are transgender, many people who are nonbinary, and many women and girls who are intersex, from participating in girls’ and women’s scholastic sports on the basis of their identity as a person who is transgender, their gender or sex, or some combination of those characteristics; and

WHEREAS, studies and surveys of the experiences of people who are out or perceived as transgender consistently report that people perceived as transgender face disproportionate harassment in school, causing many to leave school;4 and

WHEREAS, categorically denying or abridging students’ ability to participate in scholastic activities, including sports, based on their sex, or based on sex-based or gender-based assumptions about talent, skill, or strength, denies or abridges equality of rights because of sex, in violation of Article I, Section 28 of the Pennsylvania Constitution;5 and

WHEREAS, barring all women and girls who are transgender, many people who are nonbinary, and many women and girls who are intersex, from girls’ and women’s scholastic sports deprives individuals of equal protection and equal rights under the law, and disparages their individual dignity and autonomy; and

WHEREAS, the United States Supreme Court and other federal courts have held that discrimination against people because they are transgender or on the basis of gender identity is discrimination on the basis of sex;6 and

WHEREAS, Title IX of the Education Amendments, 20 U.S.C. §1681 et seq., bars educational institutions from engaging in discrimination “on the basis of sex;” and

WHEREAS, the Pennsylvania Human Relations Act (“PHRA”) extends to all educational institutions in the Commonwealth, including the primary, secondary, and college level, and colleges and universities are also included under the Pennsylvania Fair Educational Opportunities Act ("PFEOA"); and

WHEREAS, the Pennsylvania Human Relations Commission similarly considers discrimination against people because they are transgender, or on the basis of gender identity, to be discrimination on the basis of sex;7 and

WHEREAS, Pennsylvania Governor Tom Wolf has expressed a commitment to non-discrimination based on gender identity, gender expression, or transgender identity, in proclamations and announcements from his office on the subject;8 and

WHEREAS, legislation to prohibit women and girls who are transgender or intersex from participating in girls’ and women’s scholastic sports, with text that is nearly identical to House Bill 972, has been introduced or passed in states and commonwealths across the country; and

WHEREAS, legislation that discriminates against people who are transgender, nonbinary, or intersex on the basis of gender identity causes significant harm;9 and

WHEREAS, people who are transgender, intersex, and nonbinary – including athletes – already face significant discrimination and victimization;10 and

WHEREAS, legislation nearly identical to House Bill 972 has been found to violate the United States Constitution and Title IX;11 and

WHEREAS, House Bill 972 and similar legislation introduced or passed across the country lacks scientific, factual, or historical basis;12 and

WHEREAS, throughout Pennsylvania and throughout the United States, schools and interscholastic athletic associations have developed rules and procedures that permit athletes who are transgender or intersex to compete in gender-specific sports with their cisgender and non-intersex peers,13

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association opposes House Bill 972, Printer’s No. 1133, and any similar legislation that would have the intent or effect of barring women and girls who are transgender or intersex from participating in women’s scholastic sports, or otherwise discriminating against them based on their transgender identity and sex.

AND BE IT FURTHER RESOLVED that the Philadelphia Bar Association authorizes the Chancellor or the Chancellor's designee to communicate the content of this Resolution to elected officials in Pennsylvania, other public officials, other bar associations, the media and the public at large, and to take such other action as may be appropriate.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: April 29, 2021

1 Obergefell v. Hodges, 576 U.S. 644, 663, 135 S. Ct. 2584, 2597, 192 L. Ed. 2d 609 (2015);

2 Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (holding that firing a state employee because she is a woman who is transgender violated equal protection).

3 https://www.npr.org/2021/03/14/977215399/as-states-consider-restrictions-on-trans-athletes-what-does-the-science-say; Sport and Transgender People: A Systematic Review of the Literature Relating to Sport Participation and Competitive Sport Policies, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5357259/;

4 In one large national study, 77% of respondents from Pennsylvania perceived as transgender in a K–12 school experienced some form of harassment; for 12%, the harassment was severe enough for them to leave school. 2015 U.S. Transgender Survey: Pennsylvania State Report. (2017). Washington, DC: National Center for Transgender Equality. See also Doe ex rel. Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 523 (3d Cir. 2018)

5 Commonwealth v. Pennsylvania Interscholastic Athletic Association, 18 Pa.Commw. Ct. 45, 334 A.2d 839 (1975).

6 Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020); Adams v. Sch. Bd. of St. Johns Cty., 968 F.3d 1286 (11th Cir. 2020) (extending Bostock analysis to conclude a policy excluding transgender students from school facilities violated Title IX): Grimm, supra.

7 https://www.phrc.pa.gov/About-Us/Publications/Documents/General%20Publications/APPROVED%20Sex%20Discrimination%20Guidance%20PHRA.pdf (“The prohibitions contained in the PHRA and related case law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected class, prohibit discrimination on the basis of sex assigned at birth, sexual orientation, transgender identity, gender transition, gender identity, and gender expression.”)

8 “Gov. Wolf Issues Statement on Hate Targeting Transgender Pennsylvanians,” (https://www.governor.pa.gov/newsroom/gov-wolf-issues-statement-on-hate-targeting-transgender-pennsylvanians/); “Gov. Wolf: Pennsylvania Must Protect LGBTQ Citizens from Violence, Discrimination” (https://www.governor.pa.gov/newsroom/gov-wolf-pennsylvania-must-protect-lgbtq-citizens-from-violence-discrimination/)

9 Doe ex rel. Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 523 (3d Cir. 2018)

10 Sport and Transgender People: A Systematic Review of the Literature Relating to Sport Participation and Competitive Sport Policies, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5357259/; Report: The Importance of Sports Participation for Transgender Youth, https://www.americanprogress.org/issues/lgbtq-rights/reports/2021/02/08/495502/fair-play/

11 Hecox v. Little, 20-cv-184, Doc. No 63, (D. Id. August 17, 2020).

12 See note 3, supra.

13 https://billypenn.com/2021/04/06/pennsylvania-bill-transgender-sports-girls-martina-white-wolf-veto/; https://www.transathlete.com/ (summarizing policies); The Pa. Interscholastic Athletic Association (https://13248aea-16f8-fc0a-cf26-a9339dd2a3f0.filesusr.com/ugd/2bc3fc_f8142bb6209a401e90a6b6c469ba5f60.pdf) (“Where a student’s gender is questioned or uncertain, the PIAA will accept the principal’s decision as to the student’s gender.”);Philadelphia School District (https://www.philasd.org/src/wp-content/uploads/sites/80/2017/06/252.pdf) (“Transgender and gender-nonconforming students can play sports and participate in physical education classes “in a manner consistent with their gender identity.”)