EL PASO COUNTY (KOAA) — A Colorado school district is taking legal action over fear of repercussions if it chooses to enforce a new policy tied to biological sex and sports.
The policy, which was passed Thursday nightby the D49 school board, is titled "Preserving Fairness and Safety in Sports." Under the policy, the School District’s interscholastic athletic teams or sports are designated as one of the following based on biological sex: Male, men, or boys; Female, women, or girls; or Coed, mixed, or open. It also impacts locker rooms and hotel accommodations for team travel.
D49 filed the lawsuit on May 9 and named the Colorado Civil Rights Division, members of the Colorado Civil Rights Commission, Colorado Attorney General Phil Weiser and the Colorado High School Activities Association (CHSAA) as defendants.
"School District 49 serves more than 10,000 students in El Paso County, Colorado," part of the introduction to the lawsuit reads. "It brings this action to protect students’ constitutional rights to equal protection and bodily privacy. The District has adopted policies classifying sports teams by biological sex and maintaining separate locker rooms and accommodations, protecting 1,695 student athletes (683 girls and 1,012 boys) across 14 sports programs in the District."
D49 highlighted the following reasons for filing the lawsuit:
- To prevent sex discrimination by ensuring fair athletic opportunities for female students
- To protect all students’ personal privacy rights affirmed by the Fourteenth Amendment
- To shield the District from liability under federal equal protection principles and Title IX.
News5 spoke with the D49 Superintendent, Peter Hilts, about the decision to take legal action.
"I want to make it clear, we sought to do this without a legal option," Hilts explained over a video call. "We pursued a resolution directly with CHSAA, because CHSAA has acknowledged that their bylaws are in direct conflict with Title IX, and so we sought to resolve that at the administrative level, at the agency level with CHSAA. CHSAA declined to make that resolution or to bring their bylaws in compliance with Title IX."
Title IX prohibits discrimination based on sex in education programs and activities, including athletic programs, that receive Federal financial assistance.
The bylaw in question states that CHSAA recognizes "the right of transgender student-athletes to participate in interscholastic activities free from unlawful discrimination based on sexual orientation and gender identification. To ensure appropriate gender assignment for purposes of athletic eligibility, a transgender student-athlete's home school will meet with the student to determine the gender assignment for the prospective student-athlete. The CHSAA will review athletic eligibility decisions based on gender assignment of transgender student-athletes in accordance with its approved policies and appeals procedures." D49 believes CHSAA's bylaws conflict with the Equal Protection Clause of the U.S. Constitution.
But it isn't just CHSAA that D49 has issues with; D49 believes that the Colorado Anti-Discrimination Act, or "CADA," requires the district to discriminate against female athletes.
"I think the primary thing is, when you're talking about physical competition, physical contests, which sports are, you're talking about competition based in strength and speed, stamina, coordination," Hilts said. "Those physical kinds of events ought to be governed by a physical standard. So the biological binary of male and female is a physical standard for physical activity. It's not a psychological or sociological standard, because those are more subjective, whereas the biological binary is objective. And so that's why we're confident that we've taken the right policy position. We're taking the right legal steps in defense of that policy position. And now we'll see where the courts land."
News5 reached out to multiple defendants in the lawsuit. CHSAA says that as of Monday night, they have not received any official notice of pending legal action. The Colorado Attorney General's Office shared a brief statement.
"The attorney general’s office is committed to defending the state’s antidiscrimination laws," a spokesperson for the Colorado Attorney General's Office wrote. "We have no further comment on this pending litigation."
One of the reasons D49's policy change came about was an Executive Order from President Donald Trump issued Jan. 20 titled "Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." Another executive order was signed Feb. 5 titled "Keeping Men Out of Women’s Sports." The executive order threatens funding if the order isn't followed, and cites Title IX.
"The number one thing I would want people to hear is that this is about protecting what girls have fought for and earned since 1972, when Title IX was originally included in the Education Amendments of 1972," Hilts said as a final note. "The purpose was to make sure that girls competing against girls had the same opportunities to practice, participate, form a team, compete, win and earn scholarships. We believe in that, and we are going to do our best to protect those opportunities for all of our students."
News5 will continue to track this lawsuit and provide updates as they become available.
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