by Emily Pecot

Participation in sports—from Little League to high school to the collegiate level—is about more than just winning. Involvement in sports promotes life skills such as discipline, responsibility, self-confidence, and teamwork.

According to Inside Higher Education, there are currently 20 states that limit or ban transgender athletes in grades K-12 from participating in sports that align with their gender identity. The constitutionality of these bans is being challenged under Title IX, the landmark gender equality law enacted in 1972, which prohibits discrimination based on sex in any educational program receiving federal funding.

First, a few terms to keep in mind. Transgender refers to a person whose gender identity and/or their expression of gender is different from the gender they were assigned at birth. In other words, a transgender girl is someone who was assigned the male gender at birth but identifies as a girl or female. Cisgender is the term used to describe someone whose gender identity matches the sex they were assigned at birth. A cisgender girl, for example, is someone who was assigned the female gender at birth and also identifies as female.

In June 2022, President Joseph R. Biden expanded protections under Title IX to include discrimination based on gender identity. The administration’s guidelines, however, fell short of expanding protections to transgender athletes. The Department of Education has stated it “will engage in a separate rulemaking process to address Title IX’s application to athletics.” No timeline has been defined for that process.

Supporters and opponents of transgender sports bans both claim Title IX supports their argument. Opponents of the bans argue that transgender girls are being denied the opportunities that playing sports provides, something that they say is protected under Title IX. Supporters of the bans say Title IX is meant to protect fair competition for women and girls and that transgender female athletes have an unfair physical advantage over cisgender athletes.

Garden State a touchstone

In 2009, the New Jersey State Interscholastic Athletic Association (NJSIAA) outlined broad gender definitions and policies on transgender athletes. According to Robyn Gigl, an attorney and advocate for transgender equality who consulted with the NJSIAA in updating its guidelines in 2017, New Jersey’s policy is widely considered a touchstone for states seeking inclusivity.

The NJSIAA guidelines allow transgender students to “play sports consistent with either their birth sex or their gender identity, but not both.” For example, if a transgender girl opts to play girls’ field hockey, she cannot then play boys’ basketball. According to the rules laid out by the NJSIAA, the decision regarding participation must be made before the transgender student tries out for or practices with a team.

Gigl, who serves on the Board of Directors of Garden State Equality, an LGBTQ+ rights organization, says, “In New Jersey, a student doesn’t need to rely on shifting Title IX interpretations because the student is protected under New Jersey state law and the NJSIAA policy.”

Other states, such as Connecticut, have cemented policies with wider gender definitions that do not restrict participation based on assigned gender at birth. In 2021, the U.S. District Court the District of Connecticut dismissed a lawsuit that sought to ban two transgender girls from competing in high school track. The lawsuit, which claimed that transgender girls had an unfair advantage over cisgender girls, was dismissed on procedural grounds since the two transgender athletes had already graduated by the time the court considered the matter. The case was appealed to the U.S. Court of Appeals for the 2nd Circuit and oral arguments were heard in September 2022. That court will decide whether to uphold the lower court’s dismissal or send it back so the case can be heard.

According to Gigl, to date, she is unaware of any court challenges to the NJSIAA’s guidelines; however, in 2021 New Jersey lawmakers introduced the Fairness in Women’s Sports Act. The bill would require that “participation in school-sanctioned sports be based on biological sex at birth.” The proposed legislation has, so far, failed to move forward.

State bans

In March 2020, Idaho passed the Fairness in Women’s Sports Act (HB 500), becoming the first state to ban transgender athletes from participating in girls’ sports from kindergarten through college. The American Civil Liberties Union (ACLU) and Legal Voice, a women’s rights group, filed a lawsuit on behalf of Lindsay Hecox, a transgender female runner at Boise State University, claiming HB 500 violates Hecox’s rights under Title IX. In August 2020, the U.S. District Court for the District of Idaho issued a preliminary injunction against the law. In July 2022, the same court ruled that Hecox’s case can move forward while the law remains blocked, returning it to the Ninth Circuit which had remanded it to the lower court for the limited purpose of addressing whether the claim could proceed.

Madison Kenyon, a cisgender female who runs track and cross-country for Idaho State University, signed on to the case asking that the law be upheld. In an interview with National Public Radio (NPR), Kenyon said she is just fighting to preserve the integrity of women’s sports.

“To step on the field and have it not be fair and to get beat by someone who has advantages that you’ll never have, no matter how hard you train—it’s so frustrating,” Kenyon said.

In the same NPR article, Hecox revealed that she is medically suppressing her testosterone levels.

“I know I’m not as fast as I used to be,” Hecox said. “And when they have that presented to them and they still don’t want me to run, it’s just downright exclusionary. I don’t know how else to convince someone if they still think I have an advantage that’s not there.”

Advocates argue that whatever advantage transgender women may have over cisgender women in sports, it is no more of a benefit than other athletic advantages. For example, a tall basketball player has an advantage over a shorter player and some right-handed athletes have advantages over left-handed ones.

The question is when do some advantages become unfair. The science on whether transgender athletes have unfair advantages over cisgender athletes is still in its infancy.

How many transgender athletes?

According to the UCLA School of Law’s Williams Institute, a research center that focuses on sexual orientation and gender identity law, there are 1.6 million people aged 13 or over who identify as transgender in the U.S. This represents less than 1% of the U.S. population. The Centers for Disease Control and Prevention estimated in 2019 that 1.8% or approximately 275,000 high school students nationwide identify as transgender. Fewer than 15% of all transgender students play sports, according to the Human Rights Campaign, an LGBTQ+ advocacy group. While much of the focus in the headlines has been on transgender girls/women athletes, there are transgender boys/men athletes competing as well.

In many states, transgender sports bans have been passed to bar very few—in some cases just one—transgender athletes from competing. For example, Utah passed a transgender sports ban in March 2022. Utah Governor Spencer Cox vetoed the bill; however, the Utah Legislature overrided his veto. In a letter explaining why he vetoed the bill, Governor Cox pointed out that there were only four transgender students in the state asking to compete.

“Four kids who are just trying to find some friends and feel like they are a part of something. Four kids trying to get through each day,” Governor Cox wrote. “Rarely has so much fear and anger been directed at so few. I don’t understand what they are going through or why they feel the way they do. But I want them to live.”

In August 2022, a Utah judge temporarily blocked the ban after a lawsuit challenging it was filed by the American Civil Liberties Union, the National Center for Lesbian Rights, and two transgender girls seeking to compete on their high school girls’ teams. While the case makes its way through the court system, it will remain blocked. In the meantime, the Utah Legislature set up a commission to make decisions on a case-by-case basis as to which transgender athletes can compete.  

Beyond sports

According to a recent Washington Post-University of Maryland poll, 55% of Americans oppose transgender girls competing with cisgender girls on high school sports teams and 58% oppose transgender women competing with cisgender women in college and professional sports.

For transgender student-athletes, the issues go beyond sports. Exclusion from athletic programs intensifies the isolation transgender students face in their daily lives and can cause disengagement from school. A 2022 report from The Journal of Interpersonal Violence showed that 86% of surveyed transgender youth said they had suicidal thoughts and 56% reported they had attempted suicide.

At the elite level

Following the 2022 Winter Olympics in Beijing, the International Olympics Committee (IOC) released new guidelines—IOC Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations.

More than 250 athletes and stakeholders helped create a more inclusive framework than the IOC’s previous policies, which focused on testosterone levels for transgender female athletes, requiring at least one year of testosterone-suppressing treatment prior to competing.

The new framework reads: “No athlete should be precluded from competing or excluded from competition on the exclusive ground of an unverified, alleged or perceived unfair advantage due to their sex variations, physical appearance and/or transgender status.”

Despite the IOC’s framework, other governing bodies implemented more restrictive guidelines for transgender athletes. In June 2022, the international swimming federation (FINA) essentially banned transgender women from competing in international swimming competitions. The ruling bars anyone from competition who started testosterone suppression treatment beyond early puberty, in other words after age 12. FINA’s ruling also requires low testosterone levels from transgender female swimmers—a level that the Human Rights Campaign called “unrealistic.”

In January 2022, the National Collegiate Athletic Association (NCAA), which governs 480,000 collegiate athletes nationwide, issued new guidelines requiring the 32 transgender athletes that compete at the NCAA level to regularly report testosterone levels and provide documentation that meets sport-by-sport requirements. The NCAA’s guidelines are scheduled to take effect in August 2023.

What professional athletes say

The transgender sports ban issue has divided professional athletes as well. Nancy Hogshead-Makar, an Olympic swimmer who represented the U.S. at the 1984 games, issued a statement saying, “I agree that trans women are women for all purposes, meaning the classroom and employment and family law and public accommodation, etc. But when it comes to sport, you cannot deny biology and facts. And the facts say that men and women are so different, different enough that in order to give girls and women an equal opportunity to participate, they need their own team.”

On the other side of the coin, tennis legend Billie Jean King, who founded the Women’s Sports Foundation in 1974, advocates for strengthening Title IX to include protections for transgender athletes. She has said that “sports equality without LGBTQ inclusion is not equality at all.”

In a Sports Illustrated editorial, King wrote, “Transgender athletes now face a widespread attack on their rights to play and compete…While we can and should have a respectful dialogue regarding evidence-based research and the appropriate standards for elite competition, banning transgender athletes altogether is not the answer.”

Discussion Questions

  1. It seems like the pushback against transgender athletes focuses on transgender women and girls. Why do you think transgender men and boys competing against cisgender men and boys are, for the most part, left out of the transgender sports ban conversation? Do you think there should be separate laws regarding transgender men and women competing in sports? Explain your answer.
  2. What do you think about New Jersey’s guidelines regarding transgender athletics?
  3. Throughout the article both sides of the transgender sports ban issue are discussed. Which argument do you find more compelling? Explain your answer.

Glossary Words
appealed
— when a decision from a lower court is reviewed by a higher court.
injunction — an order of the court that compels someone to do something or stops them from doing something.
legislation — laws made by a legislative body.
override –to use authority to reject or cancel a decision.
remand— to send a case back to a lower court.
veto — to refuse approval or passage of a bill that has been approved by a legislative body. The executive branch of government has the power to veto, but that power may be overridden with enough support.
upheld — supported; kept the same.

BONUS SIDEBAR:

Title IX Turns 50

It’s only one sentence long, but Title IX has packed a punch for the past 50 years.

President Richard Nixon signed Title IX into law on June 23, 1972, as part of the Education Amendments of 1972, which amended the Higher Education Act of 1963. Title IX states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

The law covers most K-12 schools, as well as vocational schools, colleges and universities, ensuring equity between men and women. While athletics is most associated with Title IX, it applies to other areas of education, including employment, discrimination in admissions, financial assistance, as well as how sexual assault and violence on college campuses are reported and handled.

Before Title IX

Before this landmark legislation, girls and women were discriminated against in college admissions, scholarships and what types of courses they could take, according to the Equity Resource Center. Some universities even had separate entrances for male and female students and most medical and law schools admitted fewer than 15 women per year. In addition, several fields of study were, for the most part, not available to women, including math and science.

In 1971, 18% of women obtained four-year college degrees. In 2021, that number reached 39%. The percentage of women who obtained medical, or law degrees was slim in 1971—9% for the medical field and 7% for the legal field. In 2021, according to the Association of American Medical Colleges, the number of female medical students reached nearly 52%. According to the American Bar Association, women outnumbered men in law school in 2020, with women making up a little more than 54% of all law students.

Patsy T. Mink, a representative from Hawaii and the first Asian American woman and woman of color in Congress, was one of the major forces behind the passage of Title IX. Rejected from medical school, Mink became a lawyer instead and eventually entered politics. After her death in 2002, the official name of Title IX was changed to the Patsy T. Mink Equal Opportunity in Education Act.

Gains made on the field

While the word “sports” doesn’t appear in Title IX, the word “activity” does. Requiring schools to provide equal access for boys and girls to all activities was determined to include sports. Because of that, Title IX has been most associated with providing opportunities for girls in athletics.

According to the Women’s Sports Foundation, less than 295,000 girls played high school sports nationwide in 1972, compared to 3.6 million boys. In the 2018-2019 school year, more than 3.4 million girls played high school sports, compared to approximately 4.5 million boys. Here’s a fun fact: Women athletes made up 48% of the Olympians at the 2020 Tokyo Summer Olympics (held in 2021 due to the pandemic), the highest percentage to date.

Future of Title IX

Today, the LGBTQ+ community is looking to Title IX for protection. While the Biden Administration expanded protections under Title IX to include LGBTQ+, specifically citing discrimination based on gender identity, it made no mention of protection for transgender athletes. A ruling on that is expected to come later.

Members of the public were allowed to comment on the administration’s policy and by the deadline for public comment, the Department of Education had received nearly 236,000 responses—in support and opposition. —Jodi L. Miller

This article and sidebar originally appeared in the fall 2022 edition of Respect, our diversity newsletter.