SEATTLE—Washington Attorney General Nick Brown announced Thursday that the state has retained the national law firm Bryan Cave Leighton Paisner (BCLP) to defend voter-approved Initiative 638 against a lawsuit seeking to block its implementation.
“I have therefore decided to appoint an outside law firm, Bryan Cave Leighton Paisner (BCLP), to defend Initiative 638 on behalf of Washington state. Appointing outside counsel—known as a Special Assistant Attorney General—is a common step we take when our office cannot handle a case ourselves, whether because of a conflict of interest, a need for specialized expertise, or simply because of workload,” AG Brown wrote.
He added that one of his office’s core duties is to ensure that laws passed by the Legislature or by voters through the initiative process are vigorously defended.
“I am deeply committed to that principle and my professional and ethical responsibilities as Washington’s chief legal officer,” he wrote. “My personal views do not dictate what laws get defended or the strength of that defense.”
Initiative 638, also referred to as the Defending Equity in Interscholastic Sports Act, was approved by voters on November 3. It received roughly 56 percent support statewide in the November 3rd General Election. The measure requires students seeking to participate in K-12 girls’ or women’s school sports to provide documentation from a health care provider verifying their biological sex, defined by reproductive anatomy, genetic makeup, or normal endogenously produced testosterone levels. It bars students defined as biologically male from competing in athletic activities intended for female students only at public and certain private schools. The law is scheduled to take effect December 3.
On November 9, a coalition including the Washington Education Association, the nonprofit TransFamilies, and parents of student-athletes filed suit in King County Superior Court to prevent the measure from taking effect. The plaintiffs are represented by the ACLU of Washington, Legal Voice, and Pacifica Law Group. The complaint alleges that the initiative violates the state constitution’s privacy protections under Article I, Section 7, the Equal Rights Amendment, and rights related to equal education. It also claims the verification requirement intrudes on students’ privacy and applies only to girls’ sports, not boys’ sports. The suit seeks a preliminary injunction to stop implementation on December 3.
Brown wrote his office has spent the past two years bringing and winning cases to protect access to health care for transgender Washingtonians and to defend state equal-protection laws.
“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 wrote. “And while voters have passed a law changing our state’s approach to school sports, many other laws remain on the books that protect the rights of transgender people in a wide range of contexts.”
He called BCLP a well-respected national firm with a substantial presence in Washington that has handled important cases for the state previously.
“I am confident that this approach will best ensure that I-638 is appropriately defended in a way that its supporters can have confidence in, while also allowing our office to continue our other important work defending transgender rights,” Brown wrote. “My highest obligation is to Washingtonians, and I am confident that this approach best respects their will.”
The selection of BCLP has drawn criticism. State Rep. Matt Marshall, a Republican from the 2nd District and a physician assistant who specializes in sports medicine, posted to X that in 2023 a Bryan Cave Leighton Paisner pro bono team partnered with Lambda Legal and the ACLU of Missouri to challenge a Missouri attorney general’s emergency rule restricting gender-affirming care. The firm’s own materials describe the team securing a temporary restraining order in Southampton Community Healthcare v. Bailey on behalf of a clinic, individuals, and families of two young transgender people.
Marshall questioned whether the firm would vigorously argue that students who went through male puberty hold lasting physical advantages and should not compete in girls’ sports. He also questioned whether the Attorney General’s Office had reviewed the firm’s prior transgender-related litigation before signing the contract and whether the contract and billing rates would be released.
The case remains in King County Superior Court and no hearing date on the request for emergency relief had been scheduled.
Author: Mario Lotmore
