Issue 50 – School Board Votes to Authorize Lawsuit Against I-638

Nearly a week ago voters in Washington State approved Initiative 638. It overturns a nearly 20-year old policy allowing kids to play school sports on the team of their gender identity, and also requires invasive genital examinations for girls who want to play school sports.

On Monday, the Seattle Public Schools board of directors responded to this attack on equal rights and the privacy and safety of SPS students by voting to authorize a lawsuit against I-638.

SPS has not said whether it will file such a lawsuit. On Tuesday morning, the ACLU of Washington, the Washington Education Association, Legal Voice, and TransFamilies announced they had filed a lawsuit seeking to overturn I-638.

Director Joe Mizrahi, who cosponsored the resolution alongside board president Gina Topp, explained in his comments that “As a father of three daughters who play sports, I was opposed to 638.” In October, the board had voted to oppose I-638’s passage.

Mizrahi explained that this vote was necessary for board directors to fulfill their oaths of office, in which directors pledge to uphold the federal and state constitutions and the laws. I-638, Mizrahi explained, violates all of those:

“Washington already has important laws on the books. Laws that protect student privacy, laws that guarantee equal protection and access to educational opportunities, laws that protect students from discrimination, and Initiative 638 did not repeal any of those laws. So all those laws still exist. And right now, I don't see how we can implement the requirements of Initiative 638 without violating those other laws and constitutional protections.

It raises serious questions about equal protection, student privacy, and whether we're creating additional barriers for female student athletes to participate in school athletics. We can't pick one new law to follow and disregard other laws. That's not what our oath tells us to do. And when those laws potentially conflict, we actually have a system for resolving those conflicts, and that's called the courts.”

Director Liza Rankin then spoke in support of the resolution, and two student board members advised a yes vote on the resolution.

The resolution passed unanimously. It does not guarantee a suit will be filed, as that requires further action by the Superintendent and SPS counsel.

Based on Washington State’s human rights and civil rights laws, as well as constitutional protections for equal rights, as well as precedent from other states, it seems likely that I-638 will be overturned without ever being implemented. The ACLU-led coalition cited those factors in announcing their lawsuit:

“Plaintiffs are suing on the grounds that the law violates the Washington state constitution in multiple ways. By requiring a sex verification, the law significantly intrudes on students’ privacy rights guaranteed by Article 1, Section 7. I-638 also violates the Equal Rights Amendment of the state constitution. The law does this by imposing the sex-verification requirement on all girls and not imposing the same on boys.

The imposition of sex verification requirements for girls to participate in sports that is not imposed on boys is also a violation of Article IX of the state’s constitution, which guarantees the right of education to all children in Washington schools, without distinction or preference on account of race, color, caste or sex. I-638 also violates state constitutional procedural requirements for enacting new laws that amend existing laws. It violates this by amending the Washington Law Against Discrimination and other anti-discrimination laws that explicitly protect transgender people.”

The prospect of I-638 never being implemented has sent local MAGA activists into a frenzy. Several attended the school board meeting on Monday night to oppose the resolution, though supporters of the resolution attended as well.

Former Seattle Times columnist Matt Calkins attacked The Bulletin on Fox News yesterday for our recent article that accurately compared I-638 to California’s notorious Proposition 8 and described how the initiative could be overturned. Former Seattle Prep and UW basketball star Spencer Hawes also attacked The Bulletin, arguing that efforts to overturn I-638 were an attempt to “overturn the will of the voters.”

But this talking point is inaccurate, and misunderstands how American government works.

The United States, and Washington State, are governed by federal and state constitutions. That means legislatures, executives, and voters are limited in what political actions they can take by the words written in those constitutions. The “will of the voters” doesn’t trump what is written in those constitutions, or in other laws. Nobody has absolute power.

Constitutions can be amended. But in Washington State, only the legislature can initiate such an amendment. Voters can’t. That means ballot initiatives here are merely statutes, laws that must pass constitutional muster to be implemented. It also means the legislature can amend or repeal I-638, though it takes a 2/3 vote in each house of the legislature to do that for the first two years after an initiative passes. (After that, it takes just a simple majority.)

In short, the “will of the voters” isn’t what drives American lawmaking. That’s why school segregation, interracial marriage bans, and numerous other hateful policies are no longer on the books. Voters do not get to violate the constitution. It’s why Prop 8 was overturned, and it’s why I-638 will likely be overturned.

But that judicial outcome won’t be the end of the story. The eventual success of marriage equality wasn’t caused just by the courts alone. It was won by activists turning the tide of public opinion and telling a positive story about inclusion and acceptance. Washington State was one of the first to vote to approve marriage equality, helping encourage the U.S. Supreme Court to overturn all marriage bans in 2015.

I-638’s passage will, hopefully, turn out to be an awful aberration as was Prop 8’s passage. But that only happens if people organize to make that happen.

Finally, some I-638 supporters have criticized the school board for taking action on this topic, rather than other issues facing the district. That criticism doesn’t hold water either. The board does have an obligation to protect the wellbeing and rights of its students. And as Director Mizrahi said at the meeting, I-638 flies in the face of other laws and constitutional rights directors swore to uphold, so the courts have to address it.

Still, the board’s swift response is something that we should see on other topics as well. Too often the school board holds back, making excuses for inaction even as problems mount and the public calls for change. 

The school board did the right thing in authorizing a lawsuit against I-638. Let’s hope it’s the beginning of a new era where the board proactively steps in to make policy and solve problems, and deliver a great education for all our students.