(The Center Square) – Washington Attorney General Nick Brown announced Thursday his office will contract with an outside law firm to defend Initiative 638, approved by Washington voters last week to prevent biological males from competing in girls’ sports, against a lawsuit that would block the measure from going into effect.
Brown said in a press release he based the decision to partner with outside counsel on a potential conflict of interest and to allow his office to continue its focus on equal protection for transgender people.
“One of the most important duties of the Attorney General’s Office is to ensure that laws passed by the Legislature or by the voters through initiative are vigorously defended,” the release said.
“I am deeply committed to that principle and my professional and ethical responsibilities as Washington’s chief legal officer. My personal views do not dictate what laws get defended or the strength of that defense.”
Backers of I-638 including Let’s Go Washington argue the law firm hired by Brown’s office to defend I-638, Bryan Cave Leighton Paisner, is the last firm that should have been brought in to uphold the will of voters.
“This is the law firm you would hire if you wanted to strike 638 down, not defend it,” wrote Let’s Go Washington Executive Director Darren Littell via text message to The Center Square on Friday.
“AG Brown opposes fairness in girls’ sports and the outside law firm he hired has the same views as him. BCLP is a ridiculous choice to defend fairness in girls’ sports,” Littell added.
I-638 was approved by 56% of Washington voters in the Nov. 3 election and is set to take effect upon certification on Dec. 3.
As expected, opponents filed a lawsuit this week with a goal of preventing I-638 from taking effect.
Attorneys for Legal Voice, the American Civil Liberties Union of Washington and Pacifica Law Group filed a lawsuit against the initiative earlier this week on behalf of the Washington Education Association and several parents of student athletes.
Also, this week, as reported by The Center Square, the Seattle School Board voted unanimously to allow SPS to challenge I-638 in court.
Brown explained the rationale for assigning outside counsel to defend I-638 in the press release.
“I have therefore decided to appoint an outside law firm, Bryan Cave Leighton Paisner 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.”Rep. Matt Marshall, R-Eatonville, posted his concerns on X about the AG partnering with BCLP to defend I-638.”The firm Nick Brown just hired to defend I-638 went to court in 2023 to keep ‘gender-affirming care’ flowing in Missouri. That’s not my spin. It’s on Bryan Cave Leighton Paisner’s own website,” the post reads.”In May 2023, a BCLP pro bono team working with Lambda Legal and the ACLU of Missouri got a court to block Missouri’s emergency rule restricting that care. Now that same firm is supposed to stand up in court and argue that boys have real, lasting physical advantages and don’t belong in girls’ sports. You think they’re going all in on that? I don’t.”BCLP has been involved with several cases related to trans issues and found the firm has warned school districts objecting to embracing trans-athletes that they could be in violation of Title IX, records show.In April 2023, BCLP published a legal advisory regarding the Department of Education’s proposed Title IX rules for athletics, warningK-12 institutions in states with blanket bans on transgender athletes to “prepare for change,” stating directly that “such bans will conflict with the new Title IX regulation.”The firm also advised schools whose athletic associations impose restrictions on transgender participation in elementary and middle schools to “be ready to advocate that such policies be eliminated.”Marshall told The Center Square he’s of the opinion Brown’s office should be able to set their own biases aside and defend the initiative instead of hiring outside help.”Why are they failing to do their job and defend the will of the people? It’s political. It is purely political, and they’re unwilling to do their job which looks like misfeasance or malfeasance, and at this point, we should recall Brown,” said Marshall in a Nov. 13 interview with The Center Square.Marshall said if Brown truly planned to vigorously defend I-638, this would not be the law firm he chose.”They’ve only been on the side of pro trans and hiding things from parents and continue to do surgery on minors, mutilating minors, it’s disgusting. They have not been on the side of the issue that the people are on right now,” said Marshall.The Center Square reached out to Brown’s office for comment on critics suggestion that BCLP may not be the best law firm to defend the initiative.”The statement we released is our only comment about the decision. We are already in the process of working to disclose the contract documents and I can include you,” wrote Mike Faulk, Senior Communications for AG Brown via email.Faulk sent a contract to The Center Square signed Nov. 10, which shows the Washington State Attorney General’s Office retained the law firm through June 30, 2027, and caps total spending on legal fees and expenses at $150,000.Four of the firm’s attorneys are designated as Special Assistant Attorneys General, billing at hourly rates ranging from $610 for an associate to $950 for a partner. The lead attorney will bill at $828 an hour, while support staff may bill at capped rates up to $800 an hour, but cannot appear in court or sign pleadings, the contract shows.While Bryan Cave will manage day-to-day litigation, the Attorney General’s Office retains control over overall legal strategy, settlement options and appeals, according to the contract.Marshall said Brown partnering with a law firm that has only been on the pro-trans side wont’ convince Washingtonians he’s got their back in defending I-638.”They never defended this side. So, he personally can’t go out there and defend it, because he’s worried about the political side of it,” said Marshall.