Arkansas Governor Asa Hutchinson signed into law the Fairness in Women’s Sports Act (“FWSA”) on March 25, 2021. Arkansas now joins Idaho (2020—enjoined by court order) and Mississippi (effective July 1, 2021) in passing a law prohibiting biologically male students from participating in female sports. (Click here for our coverage of those laws).
Summary of the FWSA
Who: The FWSA applies to public K-12 schools, open-enrollment public charter schools, and public 2-year and 4-year institutions of higher learning. It also applies to private institutions whose interscholastic, intercollegiate, intramural, or club athletic teams or sports compete against a public school. Finally, its reach extends to state government entities, licensing or accrediting organizations, and athletic associations.
What: The FWSA requires institutions to designate eligibility to participate in interscholastic, intercollegiate, intramural, or club athletic teams or sports on the basis of biological sex. They then must prohibit biologically male students from participating in sports designated for females. The FWSA also prohibits state government entities, licensing or accrediting organizations, or athletic associations from taking adverse actions against an institution for complying with the FWSA (e.g., banning a transgender athlete).
Enforcement: The FWSA creates two separate private causes of action against covered educational institutions and/or athletic associations for students who are: 1) “[d]eprived of an athletic opportunity or suffer a direct or indirect harm as a result of a violation” of the FWSA or 2) “subject to retaliation or other adverse action by a school or athletic association” for reporting a violation of the FWSA. Students are able to receive injunctive relief, monetary damages (including for “psychological, emotional, or physical harm”), and reasonable attorney’s fees and costs.
The law also creates a private right of action for schools that “suffer a direct or indirect harm as a result of a violation of [the FWSA]” by a state government entity, licensing or accrediting organization, or athletic association.
First, we expect the FWSA to be challenged in court by civil rights groups, which may delay its implementation and/or modify its prohibitions/remedies.
Second, the language of the FWSA is broad and vague on its face. As such, courts will be required to help provide interpretation and/or limitations as it relates to the scope of the FWSA (e.g., defining “athletic opportunity”) as well as its damages components (e.g., defining “indirect harm” and instructions for how an institution shows it suffered psychological, emotional, or physical harm).
Third, the FWSA’s three private causes of action with attorney’s fees provisions create a substantial risk for expensive litigation. Accordingly, institutions should evaluate whether their policies conform with the FWSA as soon as possible. And they should monitor court developments as to when/which portions of the law are implemented.
Fourth, transgender sports eligibility continues to be an increasingly active issue in state legislatures, with similar legislation pending in more than half of the state legislatures across the United States. These state actions are also likely to be in opposition to forthcoming federal directives. Read: more litigation coming.
We encourage covered institutions to review their existing policies to ensure compliance with the FWSA or similar laws and regulations. If you have any questions regarding complying with these requirements, please do not hesitate to contact us.
As always, we will continue to update your institution with new developments on this law and related higher education issues. Please contact Bryce Young (firstname.lastname@example.org) or your attorney at Duane Morris LLP with any questions or for further guidance.