Tensions Rise in Legal and Political Battles Over Inclusion of Transgender Women in Women’s Sports
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On April 5, 2023, Kansas became the 20th state to ban transgender athletes from k-12 and women’s collegiate sports. The passage of the Kansas bill, set to take effect on July 1st, comes after three prior vetoes over a span of three years by Kansas Governor Laura Kelly. Upon its effective date, the Kansas law, proposed and sponsored by members of the state’s Republican party, will join laws in 19 other states and ban transgender athletes from competing in women’s and girls’ athletic programs starting in kindergarten and extending through college athletics programs.
The passing of the Kansas bill in early April follows the March introduction of a bill (H.R. 734) in Congress, sponsored by Florida Republican Congressman Greg Steube that aims at amending Title IX and requires athletes nationwide to compete on sports teams that are in line with “a person’s reproductive biology and genetics at birth.” H.R. 734 passed in the U.S. House of Representatives on a party-line vote (219-203) on April 20th and now moves on to the Senate for voting and amendments. Should this bill be passed by the Democratically controlled Senate, programs and institutions receiving federal funding will be held in violation of Title IX if they permit transgender athletes to participate on sports teams consistent with their gender identity instead of biological sex in cases where gender identity and sex are not identical. The crux of the Republican party dominated movement in banning transgender athletes from participating on athletics teams consistent with “who they are” is the specific motivation to bar transgender female athletes from competing in sports assigned as “women’s”. This strategic delineation of prohibiting specifically transgender females from female athletics iterated by many Republican political figures is based on the belief that transgender women are stronger and biologically superior to women who were born with female bodily composition and reproductive organs. These figures are arguing that Republican political efforts to prohibit the inclusion of female transgender athletes in sports is rooted in a want to protect women – from their view, allowing transgender females to compete in female athletics would decimate the hard-fought right of women to fairly compete in athletics.
Title IX, the statute at issue, was enacted in 1972 and is currently enforced and regularly amended by the U.S. Department of Education’s Office for Civil Rights. The goal in enacting Title IX was to prevent discrimination based on sex in educational programs and activities that receive federal funding. As the provisions of Title IX and subsequent guidelines issued by the Education Department currently stand, both sexual orientation and gender identity are protected against discriminatory practices. I. Biden Administration's Education Department’s Response to the 20 State Ban on Transgender Inclusion in Athletics
In response to this trend of proposed and new transgender-restrictive legislation, the Biden Administration’s Education Department released its proposed amendments to Title IX provisions. The proposed amendments, when enacted, would establish that categorical bans prohibiting the participation of transgender athletes on sports teams consistent with their gender identities violate Title IX. When enacted into law by the Department of Education, the proposed rule will work to thwart disparities and inconsistencies in state laws to allow for more widespread transgender inclusion on athletics teams that are consistent with the athlete’s view of their gender and “who they are.” While effectively banning categorical discrimination of transgender athletes from participating in athletics, the amendments to Title IX proposed by the Department of Education do recognize some instances in which schools may adopt policies that limit transgender athletes’ participation in competitive sports.
However, these limiting instances are narrowly tailored to highly competitive high school and college athletics environments. Department of Education secretary, Miguel Cardoza, spoke on the newest proposed rule, stating that the rule “is designed to support Title IX’s protection for equal athletics opportunity.“ To date, this is the most significant action taken thus far by Biden’s Department of Education to protect transgender individuals’ rights in relation to athletic participation in the face of participation bans in 20 states.
However, the 2023 proposed rule is not the first time the Biden Administration has attempted to thwart transgender discrimination in red states. Previous guiding provisions proposed by Biden’s Education Department aimed at prohibiting discrimination based on gender identity and sexual orientation were struck down in July 2022 in the Eastern District of Tennessee. Per the lawsuit filed by 20 states against the Education Department, Equal Employment Opportunity Commission and Justice Department, Judge Atchley granted the 20 plaintiff States’ requests to block the 2022 proposed guidelines. This decision stemmed from the view that the Department of Education’s guidance “directly interfere[ed] with and threaten[ed] plaintiff States’ ability to continue enforcing their state laws” that restrict transgender people from playing on sports teams consistent with their gender identity. The reasoning provided by Judge Atchley for striking down the suggested guidelines was because they created a credible threat of the plaintiff States losing federal funding.
If the Education Department’s 2023 proposed rule establishing that “categorical bans” on transgender inclusion in athletics violates Title IX is codified before the bicameral passing of Rep. Steube’s bill (H.R. 734), it would temporarily defeat Steube’s bill and thwart efforts to limit inclusion of transgender athletes under Title IX. Since the proposed Title IX amendments are set to be effective and codified 30 days after the comment period closes, it is likely that the amendments will be in effect before H.R. 734 is presented for final voting and passage in the House or Senate. Thus, the Education Department’s 2023 proposed amendments could set the scene for more widespread inclusion of transgender athletes of all ages, at least in the short term, in lieu of the passing of any federal statute further limiting or overriding the amendments. However, it is unclear whether State legislatures will utilize the loophole left by the Title IX amendments to discriminate against transgender athletes and bar inclusion in high school and collegiate sports programs. II. Professional and Collegiate Sports Icons Fuel Political Fires on Transgender Athlete Discrimination in Athletics
In response to the news of the Kansas ban, transgender athlete and former Olympian, Caitlyn Jenner, and NCAA women’s basketball coach, Kim Mulkey, weighed in on the conversation surrounding transgender athlete inclusion in college and professional sports.
In her comments to media outlets announcing her new “Fairness First PAC”, Caitlyn Jenner stated that she launched the political action committee (PAC) to “keep boys out of women’s sports.” She also remarked that she desires equality for women in relation to men over the inclusion of fellow transgender athletes in the world of athletics. The mission statement, posted on Fairness First’s website clarified that the PAC is “non-partisan in nature”, and was intended to “empower parental rights especially in light of radical gender ideology infiltrating our children in school”. Jenner, in a subsequent statement to the media, highlighted the arguments of Republican lawmakers, referencing the possible performance inequities of transgender female and “biologically female” competitors – claiming that the clear advantage that the transgender females have by “being biologically male never goes away.”
LSU women’s basketball coach, Kim Mulkey, expressed a similar view on the topic. In her comments, Mulkey cited her personal experiences of being excluded from sports because she was a girl, and advocated further for the protection of “biological females” in sports.  Instead of advocating for the inclusion of another marginalized group, Mulkey suggested the NCAA and professional sports look into creating a separate league or category of competition for transgender athletes. Mulkey did reference that she sees both sides of the argument, but implied there should be a fierce protection over the female sports category. She and many other women were barred from competing on male-dominated sports teams for most of their childhood and that seems to be the grounding characteristic over many of the arguments she presented.
In contrast, Nicole Morse, the director of FAU’s Center for Women, Gender, and Sexuality Studies, directly refuted Mulkey and Jenner’s comments regarding scientific research claiming transgender females have a biological advantage over biological females. Morse called out societal biases in claiming that the assumption that “men are always stronger than women is a social myth” and that it ignores that the medical transition from male to female that many transgender athletes undergo profoundly alters transgender women’s physiology. Morse’s comments referencing her research on the topic seemingly implies that transgender females, should they undergo medical transition, are hardly different than females who were born as a biological female.
III. Future Outlook
While tensions will likely continue to rise over the next few months (or years) surrounding the inclusion of transgender women in sports, it is important to note how a marginalized group’s access to something as simple as participation in sports and access to bathrooms has morphed into a political war zone. In the 20 states that enacted participation bans and H.R. 734 that recently passed in the House of Representatives, each bill introduced for voting across both levels of legislatures were introduced by Republican representatives as a part of a nation-wide push to return to the traditional status quo where “women are born women, and men are born men.” Democrats and the Biden Administration have been attempting to counter Republican efforts by introducing the 2023 amendments to Title IX and other previously thwarted regulatory measures, claiming that equality and inclusion is at the forefront of their contribution to the conversation. Even if H.R. 734 dies in the Senate, it is expected that lawsuits will be filed by the many states that ban transgender inclusion in athletics following the effective date of the Department of Education’s amendments to Title IX under the guise of “protecting women”. At this point, any legal disputes or possible legislation’s validity is unknown and likely will be for a long time as this issue continues to grow and morph through the congressional and administrative legislative processes.
 Julie Kliegman, The Next Cultural Battle: States Take Aim at Trans Athletes. (12 March 2021) https://www.si.com/college/2021/03/12/states-take-aim-at-trans-athletes  John Hanna, Kansas bans transgender athletes from women’s, girls’ school sports. (5 April 2023) https://www.pbs.org/newshour/politics/kansas-bans-transgender-athletes-from-womens-girls-school-sports  Id.  Id.  Ariana Figueroa, National ban on transgender athletes in girls’ sports passed by U.S. House panel. (9 March 2023) https://nebraskaexaminer.com/2023/03/09/national-ban-on-transgender-athletes-in-girls-sports-passed-by-u-s-house-panel/  Brooke Migdon and Mychael Schnell, House Republicans pass bill to ban transgender women, girls from school sports teams. (20 April 2023) https://thehill.com/homenews/house/3960635-house-republicans-pass-bill-to-ban-transgender-women-girls-from-school-sports-teams/  Figueroa supra.  Id.  Id.  U.S. Department of Education, Title IX and Discrimination. (August 2021) https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html  Id.  Sam Fossum and Devon Cole, Biden proposes rule for transgender student athletes that allows for some restrictions, opposes categorical bans. (6 April 2023) https://www.cnn.com/2023/04/06/politics/title-ix-transgender-student-athletes-biden-rule/index.html  Id.  Id.  Id.  Id.  Bianca Quilantan, Federal judge blocks Education Department’s Title IX guidance that protects transgender students. (7 July 2022) https://www.politico.com/news/2022/07/16/education-departments-title-ix-guidance-transgender-students-00046209  Id.  Id.  Id.  Id.  Fossum and Cole supra.  Heather Hamilton, Caitlyn Jenner seeks to ‘keep boys out of women’s sports’ with new Fairness First PAC. (5 April 2023) https://www.washingtonexaminer.com/news/caitlyn-jenner-boys-womens-sports-fairness-first-pac  Id.  Id.  Id.  William C. Rhoden, How will transgender athletes be accommodated by Title IX and college basketball. (2 April 2023) https://andscape.com/features/how-will-transgender-athletes-be-accommodated-by-title-ix-and-college-basketball/  Id.  Id.  Id.  Figueroa supra.  Id.