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Victory: How a Lawyer, a Minister, and Twenty Professional Football Players Helped End Segregation in Virginia and Professional Sports

Introduction

As Chapman Law Dean Matthew Parlow has noted, “[a]thletes in professional sports have long sought to use their platforms as celebrities to bring greater societal awareness to issues of social justice and racial inequality.”1 1.Matthew J. Parlow, Racial Protest and Racial Progress in Professional Sports, 31 S. Cal. Rev. L. & Soc. Just. 239, 253 (2022).Show MoreOne of the clearest examples is the 2020 NBA player boycott following the shooting death of Jacob Blake by police in Kenosha, Wisconsin, a boycott that spread to several other professional sports organizations.2 2.Id. at 242–43; Marc Stein, Led by N.B.A., Boycotts Disrupt Pro Sports in Wake of Blake Shooting, N.Y. Times (Sept. 4, 2020), https://www.nytimes.com/2020/08/26/sports/basketba‌ll/nba-boycott-bucks-magic-blake-shooting.html.Show MoreMultiple media outlets covering the 2020 boycott referenced an event that garnered national attention in October 1961, when several members of the Boston Celtics and St. Louis Hawks refused to play in a preseason NBA game in response to discrimination in a hotel in Lexington, Kentucky.3 3.See, e.g., Des Bieler, Bill Russell Led an NBA Boycott in 1961. Now He’s Saluting Others for “Getting in Good Trouble,” Wash. Post (Aug. 27, 2020), https://www.washingtonpost.co‌m/sports/2020/08/27/bill-russell-nba-boycott/.Show MoreSome of the stories referred to this incident as the first professional athlete boycott related to a civil rights issue.4 4.Dustin Jones, As a Racial Justice Activist, NBA Great Bill Russell Was a Legend Off the Court, NPR (Aug. 21, 2022, 5:00 AM), https://www.npr.org/2022/08/01/1114795613/racial-j‌ustice-pioneer-nba-bill-russell [https://perma.cc/E3TX-99XE]; Darren Hartwell, Bill Russell’s Civil Rights Legacy Rivals His On-Court Accolades, NBC Sports Bos. (Feb. 7, 2023, 8:51 AM), https://www.nbcsportsboston.com/nba/boston-celtics/bill-russells-civil-righ‌ts-legacy-rivals-his-on-court-accolades/284760/ [https://perma.cc/3KSD-V3CU].Show More

Just two months earlier, however, another group of professional athletes—this time, a group of football players—had agreed to boycott a professional athletic event in protest of racial discrimination in Roanoke, Virginia. The athletes did so at the behest of a local minister, who was a prominent civil rights activist. At the same time, a local civil rights lawyer was pursuing litigation to challenge the discrimination at issue, specifically enforcement of a Virginia law that prohibited integrated seating at public events, including professional sporting events. But that summer, the lawyer, the minister, and twenty football players would use a preseason NFL game to bring attention to the injustice of Virginia’s law and challenge its constitutionality. In the process, they would play an important role in helping to end segregationist practices in the NFL, establishing precedent for future racial protests by professional athletes and helping to bring about an end to Virginia’s discriminatory law.

This Essay tells the story of this largely forgotten event from the summer of 1961. The event represents a success story in the history of the civil right movement and illustrates how both legal and extra-legal methods were necessary to achieve the goals of the movement.5 5.See William P. Quigley, Ten Ways of Looking at Movement Lawyering, 5 How. Hum. & C.R.L. Rev. 23, 34 (2020) (stating that social justice lawyers “are always part of a team that mostly includes non-lawyers” and rejecting the assertion “that lawyers led and shaped the civil rights movement”).Show MoreMuch of the focus on how the civil rights movement brought about change in the law focuses on the role that lawyers played.6 6.See generally Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (1994) (chronicling the history of the NAACP Legal Defense Fund during the civil rights movement).Show MoreBut the history of civil rights advancement is a history not just of how lawyers helped change the law and society, but how non-lawyer organizers and activists were equal partners in the undertaking.7 7.See Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 Colum. L. Rev. 1436, 1522–23 (2005) (“[T]he moral suasion of participatory democratic groups of nonlawyers, and typically nonelites, was integral to law’s movement from a Jim Crow regime to a constitutional order in which formal equality was the norm.”). See generally Jennifer Gordon, The Lawyer Is Not the Protagonist: Community Campaigns, Law, and Social Change, 95 Calif. L. Rev. 2133 (2007) (describing the role of lawyers in supporting community-led campaigns for justice); Ascanio Piomelli, Appreciating Collaborative Lawyering, 6 Clinical L. Rev. 427 (2000) (advocating for an approach of collaborative lawyering).Show More

This Essay focuses on how the lawyer at the center of the boycott in Roanoke, along with those who came before and after him, used the legal process to help change the law as well as societal norms regarding racial segregation. At the same time, the Essay explores how the non-lawyers involved in this episode played a vital and complementary role in the desegregation effort. In short, the Essay explores how Virginia’s segregation laws were toppled through a combination of legal action and activism. Most importantly, the Essay memorializes the forgotten role that these individuals played in helping to desegregate professional sports and in laying the foundation for future protests by professional athletes.

  1.  Matthew J. Parlow, Racial Protest and Racial Progress in Professional Sports, 31 S. Cal. Rev. L. & Soc. Just. 239, 253 (2022). ↑
  2.  Id. at 242–43; Marc Stein, Led by N.B.A., Boycotts Disrupt Pro Sports in Wake of Blake Shooting, N.Y. Times (Sept. 4, 2020), https://www.nytimes.com/2020/08/26/sports/basketba‌ll/nba-boycott-bucks-magic-blake-shooting.html. ↑
  3.  See, e.g., Des Bieler, Bill Russell Led an NBA Boycott in 1961. Now He’s Saluting Others for “Getting in Good Trouble,” Wash. Post (Aug. 27, 2020), https://www.washingtonpost.co‌m/sports/2020/08/27/bill-russell-nba-boycott/. ↑
  4.  Dustin Jones, As a Racial Justice Activist, NBA Great Bill Russell Was a Legend Off the Court, NPR (Aug. 21, 2022, 5:00 AM), https://www.npr.org/2022/08/01/1114795613/racial-j‌ustice-pioneer-nba-bill-russell [https://perma.cc/E3TX-99XE]; Darren Hartwell, Bill Russell’s Civil Rights Legacy Rivals His On-Court Accolades, NBC Sports Bos. (Feb. 7, 2023, 8:51 AM), https://www.nbcsportsboston.com/nba/boston-celtics/bill-russells-civil-righ‌ts-legacy-rivals-his-on-court-accolades/284760/ [https://perma.cc/3KSD-V3CU]. ↑
  5.  See William P. Quigley, Ten Ways of Looking at Movement Lawyering, 5 How. Hum. & C.R.L. Rev. 23, 34 (2020) (stating that social justice lawyers “are always part of a team that mostly includes non-lawyers” and rejecting the assertion “that lawyers led and shaped the civil rights movement”). ↑
  6.  See generally Jack Greenberg, Crusaders in the Courts: How a Dedicated Band of Lawyers Fought for the Civil Rights Revolution (1994) (chronicling the history of the NAACP Legal Defense Fund during the civil rights movement). ↑

  7.  See Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 Colum. L. Rev. 1436, 1522–23 (2005) (“[T]he moral suasion of participatory democratic groups of nonlawyers, and typically nonelites, was integral to law’s movement from a Jim Crow regime to a constitutional order in which formal equality was the norm.”). See generally Jennifer Gordon, The Lawyer Is Not the Protagonist: Community Campaigns, Law, and Social Change, 95 Calif. L. Rev. 2133 (2007) (describing the role of lawyers in supporting community-led campaigns for justice); Ascanio Piomelli, Appreciating Collaborative Lawyering, 6 Clinical L. Rev. 427 (2000) (advocating for an approach of collaborative lawyering). ↑

Medicaid Act Protections for Gender-Affirming Care

Introduction

As of June 2024, ten states explicitly and categorically exclude coverage of gender-affirming care (“GAC”)1 1.GAC is not just treatment for transgender people; it is also sought by cisgender patients. See Theodore E. Schall & Jacob D. Moses, Gender-Affirming Care for Cisgender People, 53 Hastings Ctr. Rep. 15, 16, 20–21 (2023), https://doi.org/10.1002/hast.1486 [https://perma.cc/L‌QA4-EY84]. However, for the sake of clarity, in this Essay “GAC” and/or “gender-affirming treatments” refer to treatments for transgender patients.Show More for transgender Medicaid beneficiaries of all ages.2 2.Healthcare Laws and Policies: Medicaid Coverage for Transgender-Related Health Care, Movement Advancement Project, https://www.lgbtmap.org/img/maps/citations-medicaid.pdf [https://perma.cc/42RD-CNGA] [hereinafter Medicaid Coverage Map] (last updated May 21, 2024).Show More Another two states exclude coverage for transgender minor beneficiaries but presumably approve medically necessary treatment for adults.3 3.Id.Show More Coverage policies are unclear or not explicit in another eleven states and four U.S. territories.4 4.Id.Show More In total, at least twelve states5 5.Id. Exclusions that were blocked by federal courts are pending further litigation in four states: Arkansas, Florida, North Carolina, and West Virginia. Id.Show More deny medically necessary GAC based solely on the diagnosis for which beneficiaries seek treatment: gender dysphoria. Yet several states provide coverage to cisgender beneficiaries for the same gender-affirming procedures to treat other diagnoses.6 6.See, e.g., Kadel v. Folwell, 100 F.4th 122, 140 (4th Cir. 2024) (finding that West Virginia’s Medicaid program covers many GAC procedures for diagnoses other than gender dysphoria). See generally Dannie Dai et al., Prevalence of Gender-Affirming Surgical Procedures Among Minors and Adults in the US, 7 JAMA Network Open 2 (2024) (the majority of gender-affirming surgeries are chest-related procedures, and the majority of those are performed on cisgender males).Show More These exclusions violate the Medicaid Act’s (the “Act”) availability and comparability requirements, which mandate equality of coverage for medically necessary treatments without discrimination on the basis of diagnosis, type of illness, or condition.7 7.42 U.S.C.A. § 1396a(a)(10)(A)–(B) (West 2024); see Cruz v. Zucker, 116 F. Supp. 3d 334, 343–45 (S.D.N.Y. 2015).Show More Over the past decade, at least five courts heard challenges to GAC exclusions and held that they violate the Act because GAC is the consensus treatment for gender dysphoria and is medically necessary.8 8.See infra Section III.B. See generally Medical Organization Statements, Advocs. for Trans Equal., https://transhealthproject.org/resources/medical-organization-statements/ [https://per‌ma.cc/2U2S-EKKP] (last visited Sept. 27, 2024) (listing thirty major U.S. and global medical associations and societies endorsing the medical necessity of GAC).Show More To the Author’s knowledge, no court has held otherwise during that time. At the time of writing, a petition for a writ of certiorari on the issue is pending before the Supreme Court.9 9.Petition for Writ of Certiorari, Crouch v. Anderson, No. 24-90 (U.S. July 25, 2024).Show More

Exclusions differ in form between jurisdictions. Some states exclude coverage statutorily, some through agency regulations or guidance, and still others through shadow bans, unpromulgated policies generally known only within state Medicaid medical review offices.10 10.Christy Mallory & Will Tentindo, Williams Inst., UCLA Sch. of L., Medicaid Coverage for Gender Affirming Care 3–4 (2022).Show More Regardless of the form, these exclusions violate the Act.11 11.See infra Section III.B.Show More

Two issues are at the heart of these cases. A challenger must show that coverage for the categorically excluded treatment falls under a mandatory service category in the Act or that the state covers the treatment for diagnoses other than gender dysphoria. Upon that showing, the first issue is whether the excluded GAC treatment is medically necessary for the treatment of gender dysphoria. The second is whether the exclusion is a legitimate utilization control procedure.

This Essay proceeds in three Parts. First, it reviews the history of GAC coverage in state Medicaid plans. Second, it describes the availability and comparability jurisprudence requiring coverage of medically necessary care and equality of benefits. Third, it analyzes cases applying that jurisprudence in challenges to GAC exclusions, demonstrating a unanimous trend of finding the exclusions unlawful under the Act. While the Supreme Court is expected to decide only the broader issue of whether GAC bans violate the Equal Protection Clause of the Fourteenth Amendment in its anticipated United States v. Skrmetti opinion,12 12.L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 491 (6th Cir. 2023), cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024).Show More the Medicaid Act framework and reasoning should be part of that broader consideration, as it demonstrates the arbitrariness of GAC bans regardless of whether transgender people are a suspect class entitled to heightened scrutiny.

  1.  GAC is not just treatment for transgender people; it is also sought by cisgender patients. See Theodore E. Schall & Jacob D. Moses, Gender-Affirming Care for Cisgender People, 53 Hastings Ctr. Rep. 15, 16, 20–21 (2023), https://doi.org/10.1002/hast.1486 [https://perma.cc/L‌QA4-EY84]. However, for the sake of clarity, in this Essay “GAC” and/or “gender-affirming treatments” refer to treatments for transgender patients. ↑
  2.  Healthcare Laws and Policies: Medicaid Coverage for Transgender-Related Health Care
    ,

    Movement Advancement Project, https://www.lgbtmap.org/img/maps/citations-medicaid.pdf [https://perma.cc/42RD-CNGA] [hereinafter Medicaid Coverage Map] (last updated May 21, 2024). ↑

  3.  Id. ↑
  4.  Id. ↑
  5.  Id. Exclusions that were blocked by federal courts are pending further litigation in four states: Arkansas, Florida, North Carolina, and West Virginia. Id. ↑
  6.  See, e.g., Kadel v. Folwell, 100 F.4th 122, 140 (4th Cir. 2024) (finding that West Virginia’s Medicaid program covers many GAC procedures for diagnoses other than gender dysphoria). See generally Dannie Dai et al., Prevalence of Gender-Affirming Surgical Procedures Among Minors and Adults in the US, 7 JAMA Network Open 2 (2024) (the majority of gender-affirming surgeries are chest-related procedures, and the majority of those are performed on cisgender males). ↑
  7.  42 U.S.C.A. § 1396a(a)(10)(A)–(B) (West 2024); see Cruz v. Zucker, 116 F. Supp. 3d 334, 343–45 (S.D.N.Y. 2015). ↑
  8.  See infra Section III.B. See generally Medical Organization Statements, Advocs. for Trans Equal., https://transhealthproject.org/resources/medical-organization-statements/ [https://per‌ma.cc/2U2S-EKKP] (last visited Sept. 27, 2024) (listing thirty major U.S. and global medical associations and societies endorsing the medical necessity of GAC). ↑
  9.  Petition for Writ of Certiorari, Crouch v. Anderson, No. 24-90 (U.S. July 25, 2024). ↑
  10.  Christy Mallory & Will Tentindo, Williams Inst., UCLA Sch. of L., Medicaid Coverage for Gender Affirming Care 3–4 (2022). ↑
  11.  See infra Section III.B. ↑

  12.  L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 491 (6th Cir. 2023), cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024). ↑

Congressional Enforcement of Transgender Rights: Remedying Anti-Transgender Constitutional Harms Under the Enforcement Clause

Introduction

Over the past five years, trans Americans have faced a number of intrusions on their rights. States across the country have enacted laws that “bar trans participation on sports teams, ban the use of bathrooms consistent with one’s gender identity, prevent access to accurate identification documents, prohibit drag shows, prevent the discussion of queer identities in public schools, and ban queer books.”1 1.Scott Skinner-Thompson, Trans Animus, 65 B.C. L. Rev. 965, 968 (2024).Show More Perhaps the most harmful and widespread of these laws are those banning trans youth from accessing gender-affirming care.2 2.See Kiara Alfonseca, Record Number of Anti-LGBTQ Legislation Filed in 2023, ABC News (Dec. 28, 2023, 5:59 AM), https://abcnews.go.com/US/record-number-anti-lgbtq-legis‌lationfiled-2023/story?id=105556010 [https://perma.cc/2VBX-K8F2] (“The vast majority of legislation passed across the country has impacted gender-affirming care for minors . . . .”); Christy Mallory & Elana Redfield, Williams Inst., UCLA Sch. of L., The Impact of 2023 Legislation on Transgender Youth 1, 4 (2023), https://williamsinstitute.law.ucla.edu/wp-cont‌ent/uploads/Trans-Legislation-Summary-Oct-2023.pdf [https://perma.cc/4X35-CQJQ].Show More Going through puberty is a difficult experience for any adolescent. But for trans youth, the experience can be excruciating. Without access to gender-affirming care, trans youth may face “severe mental health problems, including depression, social anxiety, and suicidal thoughts and behavior.”3 3.Outlawing Trans Youth: State Legislatures and the Battle Over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2168 (2021).Show More Thus, “[e]very major medical association and leading world health authority supports health care for transgender people and youth.”4 4.GLAAD, Medical Association Statements in Support of Health Care for Transgender People and Youth (June 26, 2024), https://glaad.org/medical-association-statements-supportin‌g-trans-youth-healthcare-and-against-discriminatory/ [https://perma.cc/4X38-T72T].Show More

Under current law, even if these gender-affirming care bans are found to be unconstitutional, trans youth will have no remedy for the harms they face until the laws are struck down. States enjoy sovereign immunity from most actions seeking monetary relief.5 5.See, e.g., Hans v. Louisiana, 134 U.S. 1, 21 (1890); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53 (1996).Show More With sovereign immunity in place, the only remedy available is prospective relief preventing the states from engaging in future unconstitutional conduct.6 6.See Edelman v. Jordan, 415 U.S. 651, 677 (1974) (“[A] federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief and may not include a retroactive award which requires the payment of funds from the state treasury.” (citations omitted)).Show More Trans youth must therefore bear the costs of puberty, and of reversing the changes that puberty causes, on their own.7 7.Id.Show More

By enacting and enforcing anti-trans measures, however, states have opened the door—and their wallets—for congressional intervention. This Essay argues that, because the recent proliferation of anti-trans legislation amounts to violations of the Fourteenth Amendment’s substantive provisions, the states have invited Congress to exercise its power under the Enforcement Clause to abrogate states’ sovereign immunity. Using this power, Congress may permit trans people to, at a minimum, seek monetary relief for harms caused by unconstitutional bans on gender-affirming care.8 8.See infra Part II.Show More

Legislation under the Enforcement Clause to enforce the rights of trans people would not come without challenges.9 9.Id.Show More For example, the Supreme Court recently heard a challenge to bans on gender-affirming care for minors under the Fourteenth Amendment’s Equal Protection Clause. In United States v. Skrmetti, the Supreme Court will determine whether laws banning transgender youth from accessing gender-affirming care constitute unlawful sex or transgender status discrimination under the Equal Protection Clause.10 10.See L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. granted sub nom United States v. Skrmetti, 144 S. Ct. 2679 (2024); Petition for a Writ of Certiorari at I, United States v. Skrmetti, No. 23-477 (U.S. Nov. 6, 2023).Show More Depending on the outcome of Skrmetti, Congress’s power under the Enforcement Clause to enforce the rights of trans people may become much broader and powerful than it is now, or it may become more ambiguous and narrower. No matter the outcome of Skrmetti, however, the wave of anti-trans legislation throughout the nation is sufficient to enact some Enforcement Clause legislation.

Notwithstanding any difficulties Enforcement Clause legislation might face, Congress should seek to enact legislation enforcing the rights of trans people anyway. Enforcement Clause legislation would require the states, rather than trans people, to bear the cost of any constitutional violations. Similarly, Enforcement Clause legislation would deter states from enacting unconstitutional anti-trans legislation by opening the states to financial liability any time they cross the constitutional line.11 11.Cf. Russell M. Gold, Compensation’s Role in Deterrence, 91 Notre Dame L. Rev. 1997, 2003–07 (2016) (articulating the role of damages in deterring private actors from committing wrongdoing).Show More And, as a coequal branch of government, Congress should seek to exercise its Enforcement Clause power to participate in the process of defining the rights guaranteed by the Fourteenth Amendment and to preserve the Enforcement Clause power into the future.

The Essay proceeds as follows. Part I examines Congress’s power to abrogate state sovereign immunity under the Fourteenth Amendment’s Enforcement Clause. Part II addresses the potential avenues Congress will have for Enforcement Power legislation after Skrmetti. Part III addresses why Congress should enact legislation abrogating sovereign immunity in response to anti-trans legislation.

  1.  Scott Skinner-Thompson, Trans Animus, 65 B.C. L. Rev
    .

    965, 968 (2024). ↑

  2.  See Kiara Alfonseca, Record Number of Anti-LGBTQ Legislation Filed in 2023, ABC News (Dec. 28, 2023, 5:59 AM), https://abcnews.go.com/US/record-number-anti-lgbtq-legis‌lationfiled-2023/story?id=105556010 [https://perma.cc/2VBX-K8F2] (“The vast majority of legislation passed across the country has impacted gender-affirming care for minors . . . .”); Christy Mallory & Elana Redfield, Williams Inst., UCLA Sch. of L., The Impact of 2023 Legislation on Transgender Youth 1, 4 (2023), https://williamsinstitute.law.ucla.edu/wp-cont‌ent/uploads/Trans-Legislation-Summary-Oct-2023.pdf [https://perma.cc/4X35-CQJQ]. ↑
  3.  Outlawing Trans Youth: State Legislatures and the Battle Over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2168 (2021). ↑
  4.  GLAAD, Medical Association Statements in Support of Health Care for Transgender People and Youth (June 26, 2024), https://glaad.org/medical-association-statements-supportin‌g-trans-youth-healthcare-and-against-discriminatory/ [https://perma.cc/4X38-T72T]. ↑
  5.  See, e.g., Hans v. Louisiana, 134 U.S. 1, 21 (1890); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53 (1996). ↑
  6.  See Edelman v. Jordan, 415 U.S. 651, 677 (1974) (“[A] federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief and may not include a retroactive award which requires the payment of funds from the state treasury.” (citations omitted)). ↑
  7.  Id. ↑
  8.  See infra Part II. ↑
  9.  Id. ↑
  10.  See L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. granted sub nom United States v. Skrmetti, 144 S. Ct. 2679 (2024); Petition for a Writ of Certiorari at I, United States v. Skrmetti, No. 23-477 (U.S. Nov. 6, 2023). ↑

  11.  Cf. Russell M. Gold, Compensation’s Role in Deterrence, 91 Notre Dame L. Rev

    . 1997, 2003–07 (2016) (

    articulating the role of damages in deterring private actors from committing wrongdoing). ↑

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