Can the trans sports question land on the ballot? Nevada Supreme Court weighs arguments

CARSON CITY — The Nevada Supreme Court heard arguments Thursday surrounding the legality of a proposed ballot question backed by Gov. Joe Lombardo (R) to limit transgender participation in school sports.

In a 33-minute hearing in Carson City, justices pressed both sides over whether the question itself, as well as a description of the proposal included on signature gathering forms, passed legal muster. A lawsuit filed earlier this year argued it did not, but a judge later ruled that it can move forward, prompting an appeal to the state Supreme Court.

It comes three weeks before the deadline for supporters to submit about 150,000 signatures required for the measure to qualify for the November ballot.

The proposal would limit transgender athletes to sports based on their assigned sex at birth and require entities overseeing school sports to categorize them as male, female or coeducational. Lombardo is behind the initiative and previously described it as part of his "game plan" to secure re-election by getting people out to vote, according to audio obtained by The Nevada Independent.

It's unclear if there are any transgender student athletes in Nevada, and if so, how many. Last year, the organization overseeing high school sports in Nevada — which does not track the number of transgender athletes — changed its policy to limit participation to a student's assigned birth sex, as did the NCAA.

To qualify for the 2026 ballot, supporters must gather at least 148,788 signatures across the state by June 24. Of those signatures, at least 37,197 need to come from each of Nevada's four congressional districts. 

Lombardo's campaign declined to share how many signatures have been gathered so far. If the court rules that the parts of the question or any language included on signature gathering forms violates the law, those gathered signatures do not count toward the qualification threshold.

It can be difficult to gain a sense of how the court is leaning during oral arguments. 

Thursday's hearing addressed three arguments made in the effort to block the question, which was filed by Sue Burtch, the head of the Nevada chapter of the National Organization for Women.

Is the "description of effect" enough?

Attached to signature-gathering forms is a 200-word summary called the "description of effect," which explains the new sport designation rules.

Carson City Judge Jason Woodbury previously required supporters to amend it by explaining that it would make an exception to the Nevada Constitution's Equal Rights Amendment, which restricts discrimination based on gender and other characteristics.

But in legal filings before the high court, opponents argued that the new description was still insufficient. They argued it does not actually provide the effects of the question or outline the scope and intent of the issue at hand, but rather "merely recapitulates the measure itself." 

However, supporters — and the Carson City judge who previously presided over the case — said these details were unnecessary.

"This court has said the description of effect should not be argumentative," said Keith Ketola, a lawyer in support of the proposal. "I think any statement of whether there's a policy problem, what people's opinions on that are, I think that's argumentative."

Justice Linda Bell questioned whether under that logic, whether the court would ever expect these descriptions to go "beyond the amendment itself." 

Ketola responded that some proposals are more complex than others, but that this one is sufficient.

Does it illegally direct government action?

The proposal would direct the "State and its political subdivisions" to change school sport designations — language that opponents say is illegally directing government bodies to enact changes in support of the question.

They refer to a prior state Supreme Court ruling that quashed a ballot initiative by saying it cannot supersede the Legislature's ability to pass laws. If the question had simply said that students cannot play on sports teams designated for the opposite biological sex, this wouldn't have been an issue, opponents said.

However, Ketola said he does not interpret this as "requiring the state or any of its agencies" to enact changes. He added that similar language is part of other constitutional amendments, such as one enacting marriage equality.

But Bell said she didn't think this was a fair comparison.

"It's one thing to say that this should effectuate making sure that people get the rights that they're entitled to under the Constitution," she said. "This is sort of the opposite."

Administrative details

These ballot questions can promote policy, but not "dictate administrative details," the state Supreme Court has previously ruled.

Opponents have also argued that regulation of this topic has been delegated to "administrative bodies," evidenced by the policy changes enacted last year. There is also a part of Nevada's administrative code — in place since 2004 — that addresses participation in the opposite gender's school sports.

"Regulatory authority has addressed this more than 20 years ago," said Bradley Schrager, a lawyer opposing the proposal.

However, supporters have argued that they are proposing a "new course of policy," rather than dictating administrative rules.

Justice Elissa Cadish appeared skeptical of opponents' arguments.

"I think that the proposers of the petition have a policy they're promoting … specifically to focus on sex assigned at birth — agree or disagree that's their proposal," she said.

Schrager responded that although "that broad policy exists here, it's not all that exists here."