The American Civil Liberties Union of Virginia (“ACLU-VA”) respectfully submits this public comment in opposition to the Notice of Intended Regulatory Action (“NOIRA”) concerning the “Promulgation of Regulations Governing Biological Sex Specific or Separated Spaces and Activities.” The intended regulatory action is outside the scope of the Board of Health’s authority, would violate state and federal law, and would harm Virginia women’s health.

ACLU-VA is a private, non-profit, non-partisan organization headquartered in Richmond, Virginia. ACLU-VA represents more than 36,000 members and 298,000 supporters. The ACLU-VA promotes civil liberties and civil rights for everyone in the Commonwealth through public education, litigation, and advocacy, with the goal of securing freedom and equality for all. Our clients, members, and supporters include athletes and other women who would be directly impacted by the regulatory action described in the NOIRA.

1. The NOIRA describes regulations that would exceed the scope of the Virginia Board of Health’s authority.

The NOIRA describes Board of Health’s intended actions as “to add regulations within 12 VAC 5 to protect the health of females participating in organized female-only athletic teams and competitions in Virginia and to protect the health of females using designated female spaces where females are likely to be in any state of undress.”

The State Board of Health lacks statutory authority to promulgate these regulations. As its legal basis, the NOIRA relies on Va. Code § 32.1-12, which provides that the State Board of Health “may make, adopt, promulgate and enforce such regulations… as may be necessary to carry out the provisions of this title and other laws of the Commonwealth administered by it, the Commissioner or the Department.” Title 32.1 of the Virginia Code governs issues of public 

health such as medical research, state funding of healthcare services, and medical record keeping. E.g., Va. Code § 32.1-35 et seq. (disease prevention and control), § 32.1-162.16 et seq. (human research); Va. Code § 32.1-323 (Department of Medical Assistance Services).

No provision of Title 32.1 concerns athletic eligibility or access to sex-segregated facilities. The State Board of Health has not previously considered or promulgated regulations on these topics, and athletic eligibility is currently governed by nonprofit entities such the Virginia High School League and the National Collegiate Athletic Association.

The Virgina Administrative Process Act (VAPA) permits legal challenges to regulations for “compliance with statutory authority… [and] the stated objectives for which regulations may be made.” Va. Code § 2.2-4027(ii). When a regulation is found to not be in accordance with law, a court must “suspend or set it aside.” Va. Code § 2.2-4029.

Any regulations adopted pursuant to this NOIRA would be subject to legal challenge because the State Board of Health exceeded its statutory authority.

2. Regulations discriminating against transgender women would violate state and federal law.

The Virginia Human Rights Act (“VHRA”) protects Virginians from discrimination on the basis of sex and gender identity in public accommodations. Va. Code § 2.2-3904. Facilities offered or held out to the general public are included within the statutory definition of public accomodations. Id. Courts have also interpreted public accomodations protections to encompass athletic associations. See, e.g., Daniel v. Paul, 395 U.S. 298 (1969) (finding that a swim club was a public accommodation under the Civil Rights Act of 1964, 42 U.S.C.A. § 2000a(a)); see also PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) (finding that a nationwide sports league was a public accommodation under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C.A. § 12182). The regulations described in the NOIRA single out transgender women for categorical exclusion based on their gender identity and would violate the VHRA’s protections against gender identity discrimination in public accomodations.

Further, in the context of public schools, such regulations would also violate Title IX of the Education Amendments of 1972. Title IX prohibits discrimination on the basis of sex by educational institutions that receive federal funding. The Fourth Circuit Court of Appeals, which 

governs Virginia, has held that blanket bans on transgender girls participating on women’s sports teams violates Title IX. B.P.J. v. W. Virginia State Bd. of Educ., 98 F.4th 542, 564 (4th Cir.) (2024); see also Doe v. Hanover Cty. Sch. Bd., E.D. Va. No. 3:24CV493, 2024 WL 3850810, at *11 (E.D. Va. Aug. 16, 2024) (granting a preliminary injunction in favor of a Virginia transgender student’s participation in athletics, finding she was likely to succeed on her Title IX and Equal Protection Clause claims).

Regulations may also be challenged under VAPA for failure to abide by “right as provided in the basic laws as to subject matter.” Va. Code § 2.2-4027(ii). Thus, any regulations baring transgender women from participation in women’s athletics and access to sex-segregated facilities would also vulnerable to challenge for failure to comply with state and federal law.

3. Regulations categorically excluding transgender women from participation in women’s athletics risk their physical safety and are detrimental to all women’s health.

Even if the regulations described in the NOIRA were within the Board’s statutory authority and not prohibited by law, current research and medical evidence do not support any public health need for the proposed action.

The categorical exclusion of trans girls and women from participating in athletics in accordance with their gender identity – regardless of their individual circumstances – puts them at risk of physical harm. See B.P.J. v. W. Virginia State Bd. of Educ., 98 F.4th 542, 564 (4th Cir.) (2024) (“[Participating on the boys team] would expose B.P.J. to the same risk of unfair competition—and, in some sports, physical danger—from which the defendants claim to be shielding cisgender girls. By participating on boys teams, B.P.J. would be sharing the field with boys who are larger, stronger, and faster than her because of the elevated levels of circulating testosterone she lacks.”). This is in addition to the myriad of broader harms caused by the targeted discrimination against trans girls and women. See, e.g., Doe v. Hanover Cnty. Sch. Bd., No. 3:24CV493, 2024 WL 3850810, at *11 (E.D. Va. Aug. 16, 2024) (“Janie Doe faces a litany of harms ranging from medical regression, social isolation and stigma, financial and logistical burdens, and the dignitary harms of either ‘outing’ her as transgender or communicating that transgender students are not welcomed or encouraged to participate in school athletics at all[.]”)