People show what they value by what they treat as an emergency. What threatens what they value, and what are they going to do about it? For the Seattle School Board, the latest emergency threat is Washington voters, who chose last week to protect girls’ sports against unsafe and unfair competition from biological males. The school board viewed that outcome as unacceptable, and now they plan to sue — if only they can find the grounds to do so.

That is the gist of the actions taken Monday night, when the Seattle School Board held a special session with only one agenda item: approving a resolution “authorizing legal action” against Washington Ballot Measure 638. Sponsored by board directors Gina Topp and Joe Mizrahi, Resolution No. 2026/27-11 declared that “Immediate action is in the best interest of the District.”

“Immediate action” always fails to capture the urgency with which the Seattle School Board acted. The Washington Secretary of State will not even officially certify the election results until December 3. Yet both the Seattle School Board and the ACLU have already taken steps to challenge the measure.

However, based on preliminary returns, The Associated Press felt confident enough to call the race in favor of Ballot Measure 638 on November 4. With nearly all votes reporting, “Yes” still holds a lead of 56% to 44%, or more than 350,000 votes. Indeed, the measure’s success was so dominant that it carried 36 of the state’s 39 counties, including Spokane and the suburbs of Seattle and Portland.

Washington Ballot Measure 638 “would prohibit students it defines as ‘biologically male’ from competing in certain school athletic activities intended for female students only. It would require verification of biological sex by students’ healthcare providers,” according to the official state title.

On Monday night, less than a week after Election Day, the Seattle School Board unanimously passed the resolution which “authorizes the Superintendent to undertake appropriate legal actions consistent with this resolution to protect the interests of the District and prevent harm to District students that implementing Initiative Measure … 638 would cause.”

Not that Seattle is exactly sure what legal action to take — not yet. “I have no doubt that I will be meeting with the general counsel tomorrow and the next day and the day after that,” Superintendent Ben Shuldiner admitted. “I think that this is a very important direction from the board, and I have to be very thoughtful about how to do this.”

The resolution took a stab at defining the direction as a constitutional challenge. “Each member of the Board of Directors takes an oath of office to support the Constitution of the United States and the Constitution and laws of the State of Washington.”

But on what grounds? “In alignment with the laws of the State of Washington, the Board is committed to protecting the civil rights of children and ensuring that every student is afforded access to educational and enrichment opportunities regardless of race, gender identity, sexual orientation, disability, immigration status, home language, religion, or socioeconomic status,” it stated.

Curiously, the resolution did not quote from any specific law. It also included the category of “gender identity” while omitting the category of “sex” (most woke anti-discrimination laws add “sexual orientation” and “gender identity” while keeping the separate category of “sex”). Washington’s anti-discrimination law (RCW 49.60.030) specifically recognizes “the right to be free from discrimination because of … sex” and “sexual orientation,” but it does not mention “gender identity.”

Even if the school board found some legal basis in Washington law, proponents of Measure 638 would simply appeal to Title IX and argue that federal education law takes precedence here.

To the degree that the school board quoted anything specific, it argued that Measure 638 was “contrary to the Washington Interscholastic Athletic Association’s inclusionary policy in sports that has successfully supported equitable access to participation since 2007.”

The argument that a voter-approved ballot measure should be invalidated because of an athletic association’s pre-existing policy would likely not see great success in court.

In any event, the school board claimed that Measure 638 “would create substantial legal, operational, financial, and administrative burdens for public schools, in addition to increasing harm and exclusion for some students, exposing districts and the State of Washington to costly litigation.”

The voters of Washington state certainly did not think so, or else they judged that an acceptable price to pay to protect girls’ sports as Title IX requires.

In response to legal challenges, Let’s Go Washington PAC, the main proponent of Measure 638, counterattacked, “If asking a doctor to check an additional box requires legislative oversight, new funding structures and layers of bureaucracy, maybe Olympia needs some streamlining. Doctors already confirm a student's sex during routine sports physicals; we're simply ensuring that confirmation is also included in the information that is provided to schools.”

The Seattle School Board had advertised its opposition to Measure 638 in a resolution passed in September. But not every opponent of a ballot measure takes losing the vote as if it were an utter catastrophe. If this were Monopoly, Seattle’s reaction is the equivalent of throwing the rule book across the game board, scattering hotels, before the winning player had even counted out his roll.

It’s very frustrating. We fought really hard to stand up for fairness for our girls,” protested Measure 638 advocate Amy Sousa. “They think that they can organize to bypass the will of the voters.”