Judge deals a blow to softball players suing over Minnesota’s transgender athlete policy

A federal judge denied metro-area high school softball players’ request for a preliminary injunction in their Title IX lawsuit against Minnesota’s policy allowing transgender athletes to participate in sports.

U.S. District Judge Eric Tostrud in an order Friday said attorneys representing the athletes were unlikely to succeed in their argument that Minnesota’s nearly decade-old bylaw creates an uneven playing field and violates Title IX, the federal law prohibiting sex-based discrimination.

Female Athletes United (FAU) requested the injunction to block the state’s law ahead of the upcoming softball season, pending the outcome of the civil lawsuit, which was filed on behalf of the players in May. The attorneys focus on one unnamed high school softball pitcher who they allege was born male.

In his order, Tostrud rejected the attorney’s arguments that keeping the state’s bylaw in place for now would harm their client’s chances to obtain scholarships or other opportunities because their statistics may suffer against a dominant transgender player.

“FAU has not shown as a factual matter that bylaw-created disparities are sufficiently substantial to deny its members ‘effective accommodation’ or ‘equal treatment’ as those concepts are defined under Title IX,” Tostrud wrote in his ruling.

A message left for attorneys representing players was not immediately returned.

Minnesota Attorney General Keith Ellison said in a statement he was pleased with the order and will continue “working to ensure every Minnesotan is treated with the respect they deserve.”

The Minnesota State High School League’s board of directors in 2015 opened girls sports to transgender student-athletes and allows for students to participate in a sport “consistent with their gender identity or expression in an environment free from discrimination with an equal opportunity for participation in athletics and fine arts.”

The federal lawsuit was filed amid debate nationwide about participation of transgender athletes in high school sports. The suit was quickly followed by an investigation into Minnesota’s policy by the Department of Health and Human Services Office for Civil Rights to investigate whether the league and Minnesota Department of Education allowed “male athletes to compete on sports teams reserved for females.”

In a hearing last month, the state defended the policy by arguing Minnesota’s bylaw does not exclusively apply to female sports and an injunction may embolden schools to closely scrutinize a player’s body to ensure they’re in compliance.

The attorney, Elizabeth Kramer, gave the example of a customer’s experience in Owatonna that went viral after the teen said a server at Buffalo Wild Wings confronted her in the bathroom because they mistakenly believed she was male.