Washington Attorney General Nick Brown announced Thursday his office is declining to defend Initiative 638 — a ban on transgender girls in girls’ school sports that voters recently passed — against a lawsuit that would block the measure from going into effect.
Brown said his decision was in response to potential conflicts of interest and would allow his office to continue its focus on equal protection for transgender people.
Washington State Attorney General Nick Brown announces a lawsuit challenging President Trump's executive order that targets transgender youth medical practices, Friday, Feb. 7, 2025.
Noel Gasca / KUOW
Conservative critics had accused Brown’s office of facing conflicts when it came to upholding the initiative, given that the office has argued against bans on transgender female athletes in other contexts, including signing on to lawsuits outside of Washington state, and the fact that Brown’s former law firm, Pacifica Law Group, is part of the plaintiffs’ legal team.
Brown has appointed the national firm Bryan Cave Leighton Paisner to defend Initiative 638 “on behalf of Washington state.” He described the move as a common step his office takes to address conflicts of interest or workload issues.
In a statement, Brown said, “One of the most important duties of the Attorney General’s Office is to ensure that laws passed by the Legislature or by the voters through initiative are vigorously defended.”
“My personal views do not dictate what laws get defended or the strength of that defense,” he added.
Brown also acknowledged work his office has done to defend the rights of transgender Washingtonians.
“We have brought and won important cases against the federal government to protect access to vital healthcare services, and we have vigorously defended state laws that give transgender people equal protection under Washington law. We will not and cannot abandon that work,” Brown said.
Whether Brown’s decision to hire an outside firm to defend I-638 will mollify its supporters is yet to be seen.
Conservative commentator Brandi Kruse previously said on Facebook, “No way in hell should Attorney General Nick Brown be trusted to defend a voter initiative that he does not support, that his own party vowed to defeat, and that his former law firm is challenging in court.”
And Washington State Republican Party Chair Jim Walsh wrote that “in a rational system, State AG Brown’s close personal [and] professional ties to this left-wing law firm would require one of them to acknowledge a conflict of interest [and] withdraw from a court action against each other. WA courts, as currently operated, are not a rational system.”
On Nov. 9, the ACLU of Washington, Legal Voice, and Pacifica Law Group sued the state in King County Superior Court to block the measure from going into effect.
They represent five families with daughters who play school sports, including two trans girls. The state’s largest teachers union, the Washington Education Association, and a non-profit that supports families with transgender children, TransFamilies, are also plaintiffs in the case.
The suit alleges the initiative and the sex verification process it requires are discriminatory and violate the Washington state Constitution and students’ rights to privacy. It asks the court to intervene promptly and enjoin the initiative from being enforced before it takes effect Dec. 3.
Seven of the plaintiffs are parents of trans and cisgender girls ages 11 to 17 in Seattle Public Schools who participate in school sports. They say their students would be harmed by the initiative’s “intrusive sex verification requirements.” The parent of a transgender athlete in 12th grade said the exam and prohibition would cause her daughter “severe harm and compromise her well-being.” All of the parents have sought to remain unnamed in the lawsuit to protect their children’s privacy.
The teachers union joined the lawsuit because its members would be “required to implement and explain the verification regime,” it said.
The ban would require girls to obtain a genital exam, a hormone test, or a chromosome test to verify their birth sex before they could participate on a girls’ school sports team. It would be a shift in Washington state policy, which has allowed students to participate on sports teams that align with their gender identity for nearly 20 years.
The Washington Interscholastic Activities Association would determine how to align public school sports rules with the new law.
After the approval of I-638 by voters, the organization said in a statement it will continue to follow state law and is prepared to make “necessary changes” by Dec. 3.
The lawsuit noted the Attorney General’s Office argued against a similar ban on transgender girls in girls’ school sports last spring, when the WIAA considered but did not adopt a similar change in amendments to its handbook. According to the lawsuit, “The Civil Rights Division of the Attorney General’s Office reviewed the amendments and concluded they would violate state law.”
The lawsuit against I-638 argues that for students who don’t have a consistent health care provider, the sex verification process could require costly lab tests or invasive exams that aren’t medically necessary.
Plaintiffs also argue the Dec. 3 effective date is confusing: “Families of girls will need to schedule hurried mid-season medical appointments — and possibly blood tests or genetic tests — in order to continue playing a fall or winter sport,” according to the lawsuit.
Darren Littell, executive director of Let’s Go Washington, which backed I-638, told KUOW opponents’ sex verification claims were based on “false assumptions.”
Littell said doctors are already aware if a kid is trans, and that info can be communicated to schools without violating a student’s privacy.
“ What we’ve seen work in other states is just saying, ‘Is this individual eligible for girls’ sports, yes or no,’” Littell said. “That has nothing to do with releasing any kind of private information. All it does is say whether or not that person is eligible for girls’ sports.”
He said there are a lot of girls in Washington state who “want to see this upheld,” and he trusts the Attorney General’s Office will vigorously defend the initiative.
The initiative language said it was intended to preserve the integrity and fairness of women’s interscholastic sports. Backers said transgender girls have advantages in sports that cisgender girls don’t have. However, research into this matter is inconclusive for school-aged athletes.
Amy Radil is a reporter with KUOW. This story comes to you from the Northwest News Network, a collaboration between public media organizations in Oregon and Washington.
It is part of OPB’s broader effort to ensure that everyone in our region has access to quality journalism that informs, entertains and enriches their lives. To learn more, visit our journalism partnerships page.
