Issue 49 – Resistance Launches to Overturn Anti-Trans Initiative
I-638’s passage caught many Seattleites off guard. But immediate resistance can help ensure it is overturned.
Tuesday’s election results have many positive implications for Seattle Public Schools, including the survival of the millionaires tax which could rain money on the district. We’ll talk about that good news in an upcoming issue.
This issue is about the bad, no good, horrible news from the election: Washington State voters approved Initiative 638, an attack on trans kids and girls in our public schools. Right now, the measure leads with 56.5% voting yes. It’s unlikely that remaining ballots will overturn that lead.
Initiative 638 not only overturns a nearly 20-year old policy allowing kids to play school sports on the team of their gender identity – it also requires invasive genital examinations for girls who want to play school sports. Boys were excluded from these examinations by the MAGA authors of the initiative.
Passage of I-638 has caught many in Seattle off guard, despite ample warning from pollsters and organizers that it was likely to pass. Parents and students are now worried about the impact this will have on their kids, especially trans kids and girls.
But resistance is already mobilizing, including a rally tonight at 6PM at Westlake Park. We do not have to, and must not, accept I-638’s passage as a new reality. Instead, by taking a page from the successful battle for marriage equality, we can overturn this initiative and prevent the harm it is intended to cause.
In this issue:
How Initiative 638 Passed
Washington State was not the only place voters approved transgender athlete bans. Voters in at least three other states – Arizona, Colorado, and Nebraska – also passed similar initiatives.
Here in Washington State, I-638 leads in every county except King and Jefferson (home to Port Townsend).
Washington’s initiative would overturn nearly 20 years of policy allowing kids to play school sports on the teams consistent with their gender identity. When the Washington Interscholastic Activities Association (WIAA) adopted the policy in 2007, it was one of the first states in the country to do so. In practice, fewer than 10 students were participating in school sports this year, according to the WIAA.
In recent years MAGA activists have tried pushing back against trans rights, with girls sports becoming a particular flashpoint. Right-wing commentator Brandi Kruse has led the way in Washington State, actively whipping up a frenzy about trans kids in girls sports. Wealthy MAGA donor Brian Heywood funded the effort to get Initiative 638 on the 2026 ballot, paying to gather the necessary signatures.
According to Andrew Villeneuve of the Northwest Progressive Institute, key to I-638’s passage is what he described as a “deceptive and manipulative concise description that nicely served Brian Heywood’s purposes.”
The “concise description” is the language that appears on the ballot itself. Here’s what voters saw when they filled out their ballots:
“IL26-638 concerns participation in athletics at K-12 schools.
This measure would prohibit students it defines as “biologically male” from competing in certain school athletic activities intended for female students only. It would require verification of biological sex by students’ healthcare providers.
Should this measure be enacted into law?”
Villeneuve explained the following facts were omitted from the concise description:
“• Boys are totally exempt from the “verification” regime, including trans boys.
• There’s only three verification methods and they’re all invasive: hormonal testing, genetic screening, or proof of reproductive anatomy… a physical exam. Birth certificates are not one of the three methods.
• Not every student athlete has a pediatrician or primary care provider.
• Student athletes today can get sports physicals with their clothes on, often at no cost at their school, so they can be cleared to play.”
The concise description is limited to 30 words, and is written by the Attorney General’s Office. Why this particular concise description was chosen is unclear.
NPI conducts polls, and Villeneuve had been warning publicly for months that polls showed I-638 was likely to pass. Villeneuve did say that there were possible ways to defeat I-638:
“We found through our follow-up research studying the path to victory over 638 that when voters heard arguments at length against 638, they were very receptive to voting no. But if voters didn’t hear measure-specific arguments against it that reframed the matter, a majority of voters casting ballots were likely to vote yes.”
Unfortunately, voters did not hear those arguments. But this does suggest a path exists to winning on this issue in a future vote, as we’ll discuss below.
Proposition 8 Redux
This situation reminds me a lot of Proposition 8, the California ballot initiative that banned marriage equality in 2008.
Like I-638, Prop 8’s passage stunned many progressive Californians who didn’t expect it would succeed. But, like I-638, polling had consistently showed Prop 8 would pass. Like I-638, Prop 8 came amidst a larger national moral panic about LGBT rights, specifically marriage.
And, hopefully like I-638, Prop 8’s passage shocked people into organizing a successful effort to overturn not just that initiative, but to overturn all bans on marriage equality across the country.
I was part of the effort that tried to stop Prop 8 from passing, and then was one of the Californians who helped organize the fight to overturn Prop 8, in my role as Public Policy Director at the Courage Campaign (now Courage California).
The number one lesson of the successful battle to overturn Prop 8: do not accept its passage. Fight back immediately.
Initiative 638 isn’t a legitimate law, it’s not something that has to or should be respected. It is a bigoted attack that has no place in our state, and must be overturned at the earliest possibility.
In California, we immediately organized a statewide movement to overturn Prop 8. We “met in the middle” with a huge rally in Fresno in 2009 designed to show the state we were willing to fight anywhere and everywhere for LGBT rights.
We worked on a two-pronged strategy: a new ballot initiative to overturn Prop 8, and a legal strategy to get it overturned in the courts. Ultimately it became clear that the legal strategy would bear fruit more quickly, but we also recognized that a court case doesn’t win itself, that there still needs to be a mass movement.
We also recognized that we had to educate and persuade people that marriage equality was a good thing. We asked people to have “courageous conversations” with family and friends about marriage equality, rooted in a welcoming message that sought to build bridges.
Victories began piling up. In August 2010, a federal court judge ruled Prop 8 was unconstitutional. The Ninth Circuit Court of Appeals upheld that ruling, as did the US Supreme Court – which, in a separate case in 2015, struck down all marriage equality bans.
But those legal wins came alongside, and partly as a response to, victories at the ballot box – with Washington State leading the way. In 2012, legislators in Washington State repealed the ban on marriage equality after years of organizing. Opponents immediately gathered signatures to put it on the ballot – and Referendum 74 passed in November 2012, ensuring marriage equality became legal across the state.
(At that time I was working for Seattle Mayor Mike McGinn, who celebrated R-74’s passage by hosting marriages at City Hall the day the law took effect.)
The lessons are clear: do not accept the passage of this initiative, fight back immediately, pursue a legal and a political strategy, and work to change public opinion.
Fighting Back
Resistance to I-638 is already under way. We should not accept this law as fact, we should not prepare girls for invasive genital exams, and we should not kick trans kids off of sports teams. Instead, we should fight back and plan to win.
There are two main paths to overturning I-638. The first is a legal path through the state courts. The second is a political path through the legislature. Either way, we should expect this will return to the ballot someday, and we will have to make sure that this time, we win.
Let’s start with the legal path, which has a strong chance of success. Just yesterday, a state appeals court in New York struck down a ban on transgender athletes in Nassau County on Long Island:
“On Wednesday, the Second Department of the Appellate Division of the State Supreme Court found that both human rights law and civil rights law ‘expressly prohibit the county from restricting access to places of public accommodation based on a person’s gender identity or expression, including whether the person identifies as transgender.’”
Similar human rights and civil rights laws exist here in Washington State, and the ACLU of Washington said this morning they “will explore all potential next steps to uphold the rights of transgender girls and their access to school sports.”
NPI’s Villeneuve explained that the first step to challenging I-638 will be to seek a preliminary injunction to prevent any government agency in Washington State from implementing the initiative. This could happen later this month, as soon as the election results are certified.
In November 2019, for example, a Tim Eyman $30 car tabs initiative passed. Opponents sought and won such an injunction before the month was out. The initiative was later struck down by the State Supreme Court, and never went into effect.
Note that a legal challenge would take place in Washington State courts. Prop 8 was a state constitutional amendment, so the California courts could not offer a solution. The only path was in the federal courts. But I-638 is a statute, so Washington State courts could overturn it. We don’t need to try the federal courts or the MAGA U.S. Supreme Court.
Heywood told KUOW he expects I-638 to survive a court challenge, but that is likely just bluster. It is more likely than not that I-638 will be struck down. But if he was somehow proven correct and a legal path doesn’t work, there’s the other immediate path: the legislature.
Prop 8 was a constitutional amendment, so the California legislature could not simply vote to overturn it. But in Washington State, voters cannot initiate a constitutional amendment themselves. Only the legislature can put a constitutional amendment on the ballot. Initiative 638 is a statute, and can be repealed or amended by the legislature like any other law.
There’s a catch though. For the first two years after voters pass an initiative, it takes a 2/3 vote of the legislature to repeal it. After two years, it only takes a simple majority.
Democrats are on course to win a 2/3 majority in the State House, though not yet in the State Senate. Still, a repeal effort is worth attempting, in parallel to a court challenge, in part to show elected officials we expect them to resist MAGA bigotry.
Whether I-638 is overturned in the courts or in the legislature, it won’t be the end of the story. Heywood, Kruse, or any other anti-trans bigot will be encouraged by their success with I-638 to try again with another initiative. A big part of the eventual victory of marriage equality was winning at the ballot box. So we’re going to have to plan for this as well.
Right now, a clear majority of voters thinks trans kids should not be allowed to play girls’ sports. That can be changed, but it’s going to take persuasion work to make the case to let kids play. Villeneuve’s research suggests some solutions. Telling positive stories of inclusion and welcoming will likely have more success, just as the marriage equality movement prevailed by telling positive stories.
The 2020s are a moment of moral panic about trans people, especially trans kids. Like all moral panics, they are short-lived, but can do immense damage before they end. This moral panic will pass. But it doesn’t pass by itself. It ends when people mobilize to take action, to say these acts of hate are unacceptable, and that we will build a society of inclusion, not of exclusion.
Tonight opponents of I-638 will rally at 6PM at Westlake Park in Seattle, a first and necessary step in showing Washington State we do not and will not accept this as law, and that we will resist until it is overturned.
And while court cases and legislative challenges proceed, we will also do the work of educating our fellow Washingtonians that we were right in 2007 and wrong in 2026: let the kids play, regardless of their gender identity.
We shouldn't have to be in a position where people's basic rights are on the ballot, nor should anyone have to plead for their equal rights to be respected. Yet here we are. It's time to organize and it's time to win.
Here are a few of the organizations that are leading the fight for trans rights:
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