A judge has recommended dismissing a federal lawsuit filed by multiple school districts against the Colorado Attorney General’s and Civil Rights Offices over their policies dictating students’ participation in athletics and activities based on their biological sex rather than gender identity.

Last spring, District 49, later joined by Colorado Springs D-11, Academy D-20, Education ReEnvisioned BOCES and El Paso County charter schools, filed the lawsuit against the two state bodies plus the Colorado High School Athletics Association (CHSAA) over what they allege to be discrimination against female student athletes by allowing transgender students to participate in activities that align with their gender identity.

The small, rural school district of Montezuma-Cortez RE-1 in southwest Colorado is also named as a plaintiff.

Before the lawsuit, each plaintiff passed respective policies designating athletic teams or sports based on biological sex and barring students from entering the locker rooms and lodging in hotels with students of the opposite sex.

CHSAA settled with the plaintiffs in December, allowing the school districts to maintain their new policies and continue to participate in their sanctioned activities.

In her recommendation, U.S. Magistrate Judge Maritza Dominguez Braswell disagreed with the plaintiffs’ prudential standing to represent themselves and their respective student bodies.

For the former, she referred to previous cases determining that a political subdivision like a local school district can’t file a federal suit against its parent state based on Fourteenth Amendment rights since they “are generally subordinate to the state’s aims and goals.”

For the latter, Braswell said that, since the districts’ stance on transgender student athletes likely doesn’t align with all their students’ beliefs, they can’t argue that they are representing “all students” in their suit.

“Plaintiffs’ policies necessarily cut against the interests of transgender students who seek to compete on teams or use facilities that align with their gender identity,” she wrote. “The policies may also cut against the interests of students who seek inclusivity in school-sponsored activities.”

Braswell also questioned the plaintiffs’ unifying principle of the avoidance of an unfair advantage through their policies. Specifically, the argument has been made that the policies were necessary since transgender girls competing on girls’ sports teams would likely have physical advantages based on their biological traits.

“But even that construction does not surface a unifying principle because it overlooks the transgender boy who seeks to compete on a boys’ sports team and, by Plaintiffs’ own logic, would be competitively disadvantaged,” Braswell wrote.

The recommendation, made on Jan. 13, will now go to a federal district court judge for a final review.

Last week during its regular board meeting, D-49’s board of education voted to reverse course on another policy approved last year, barring transgender students from using restrooms and locker rooms aligned with their gender identity.

The reason given for the reversal was that the policy possibly violates the Colorado Anti-Discrimination Act and puts the district at risk of litigation.