Currently, one of the most publicized and politicized issues in sport is the inclusion and protection of transgender individuals under Title IX of the Education Amendments Act of 1972[1] (“Title IX”). Title IX plainly states that: “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.”[2] While this is a clear determination that no one shall be discriminated based on their gender, one major question remains: does an individual’s transgender status fall within the definition of “on the basis of sex” as it relates to Title IX? While the Supreme Court has addressed that question in relation to Title VII of the Civil Rights Act[3] (“Title VII”), it is yet to make a determination as it relates to Title IX, setting up a political battlefield. To make matters seemingly worse, each of the past three presidential administrations have issued varying guidance on how legislators and courts should interpret the law. In addition to the tumultuous responses by the federal government, individual states have taken it upon themselves to address this question for themselves. While the Biden Administration has released own interpretation to include and protect transgender individuals, almost all of the state laws passed do not match the federal government’s interpretation of Title IX, rather, states have interpreted Title IX to allow for the discrimination against transgender students and athletes. States’ use and interpretation of Title IX ultimately goes against its spirit and purpose, which has created tension between state law and federal policy, leading to an eventual showdown between individual states and the federal government to be argued in front of the Supreme Court.
The applicability of Title IX to transgender students and athletes has changed with each of the last three presidential administrations, which has caused some issue among the states. It is important to note that the issue of Title IX’s applicability to trans individuals first became relevant in 2016, when several states issued infamous “bathroom bills” which prevented transgender students from using bathrooms that aligned with their gender identity and gender presentation. States such as North Carolina, received harsh backlash for passing anti-trans legislation, which included the removal of sporting events from the state[4] in addition to several lawsuits.[5] As a direct response to these bills, the Obama Administration issued a non-binding letter, which addressed the applicability of Title IX to transgender students.[6] The letter affirmed that Title IX applied to transgender students, meaning that they could not be discriminated against because of their gender identity.[7] In doing so, the administration solidified its reasoning for the policy by adding that “transgender students have the right to access bathrooms and locker rooms and participate on athletic teams that correspond with their gender identity.”[8] Former Secretary of Education, John B. King, Jr. noted that:
This guidance further clarifies what we’ve said repeatedly — that gender identity is protected under Title IX. Educators want to do the right thing for students, and many have reached out to us for guidance on how to follow the law. We must ensure that our young people know that whoever they are or wherever they come from, they have the opportunity to get a great education in an environment free from discrimination, harassment and violence.[9]
While this believe and guidance aced backlash from many Republican legislators across the country, it was the first time that a Presidential administration addressed this issue, paving the way for future legislation and policy directives.
The guidance the Obama Administration created came to an abrupt end after President Trump took office. The former President made sweeping changes to American social policy in addition to the political landscape during his term in office. As part of his social policy, the President changed the federal government’s view of Title IX’s applicability to transgender students. In fact, it was part of his larger campaign platform to restrict the rights of transgender individuals. His Secretary of Education, Betsy DeVos, took a similar hardline stance, “rolling back” the rights of transgender students and student athletes.[10] DeVos had the opportunity to make her mark after a transgender girl won her high school track championship in Connecticut in the spring of 2020.[11]
As a direct response to the trans girl winning the track championship against cisgender girls, the DeVos Department of Education issued a letter to public schools, similar to the Obama-era letter, which dictated that allowing transgender individuals to compete in athletic competitions against people with the same gender identity amounted to sex discrimination against the cisgender athletes under Title IX.[12] The letter “contained almost no legal analysis for its conclusion” but pushed the adminsitration’s agenda forward anyway, claiming that the inclusion of “trans females in sex-segregated athletic competitions ‘den[ied] a female student a chance to win a championship’ and therefore was ‘inconsistent with Title IX’s mandate of equal opportunity for both sexes.’”[13] This incorrect use and interpretation of Title IX was the beginning of Title IX’s weaponization and use to deny trans individuals equal protection under the law. As a mechanism to enforce the Department of Education’s determination, DeVos threatened to take away school’s federal funding if they did not discriminate against trans students in athletic competitions.[14] While no public school lost its federal funding over this issue, this policy took a major blow from the Supreme Court in Bostock v. Clayton County.[15]
The landscape for Title IX’s applicability to trans individuals and trans athletes was dramatically changed after the Supreme Court’s ruling in Bostock v. Clayton County.[16] The Bostock court faced the issue of whether Title VII of the Civil Rights Act allows individuals to be fired for being transgender. The majority opinion, written by Justice Gorsuch, a notable Conservative jurist, answered that question with a definitive “no.” While the Court determined that sexual orientation and transgender status are different from sex, it held that “discrimination based on [these distinctions] necessarily entails discrimination based on sex.[17] The crux, then, of the holding is that discrimination based on transgender status is inherently discrimination on the basis of sex, an act prohibited by both Title VII of the Civil Rights Act and Title IX. This determination had a profound impact on the applicability of Title IX to trans individuals and athletes. In direct response to the Bostock holding, President Biden issued an Executive Order[18] in January 2021 and then the Department of Education released a Notice of Interpretation titled “Enforcement of Title IX of the Education Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County” the following June.[19] The Executive Order and Notice of Interpretation, while not necessarily binding law, signified the Biden Administration’s plan to increase protections for transgender individuals and athletes, and perhaps provided a glimpse into the potential federal guidelines expected to be released later this spring.
On January 20, 2021, the first day President Biden took office, he issued an Executive Order that set out his belief and his administration’s view of Title IX’s applicability to transgender students.[20] The Order simply stated that “[c]hildren should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.”[21] This was a departure from the previous administration’s policies and an affirmation that people would not be discriminated against based on their gender identity. This is in stark contrast to the Trump Administration’s position which concluded that Bostock’s reasoning did not apply to Title IX, specifically doubling down on its “position that public school districts may exclude students from athletic teams based on gender identity and could require students to use bathrooms [and locker rooms] based on biological sex, rather than gender identity.”[22] The sharp reversal between Presidents set up additional guidance from the Biden Administration in the form of a Notice of Interpretation from the Department of Education.
Following President Biden’s Executive Order, the Department of Education released a Notice of Interpretation and guidance relating to Bostock’s applicability to Title IX. The Notice of Interpretation unquestionably states: “Title IX Prohibits Discrimination Based on Sexual Orientation and Gender Identity.”[23] This is because, the Department of Education interprets “discrimination ‘on the basis of sex’ to encompass discrimination on the basis of sexual orientation and gender identity” with respect to Title IX.[24] The Department of Education made this determination based on three factors: (1) the textual similarities between Title VII and Title IX; (2) the plethora of case law which recognizes Bostock’s applicability to Title IX; and (3) the Department of Justice’s Civil Rights Division conclusion that Bostock applies to Title IX.[25] These three reasons further support the Supreme Court’s longstanding directive to interpret Title IX in a broad manner, so it affords more protections to more people. While this Notice of Interpretation is not binding, unlike directives created by Betsy DeVos as part of the previous presidential administration’s policy, the Interpretation is used by courts across the country to make determinations related to the law.[26] In addition, the interpretation signals the Biden Administration’s plan and system when it introduces new Title IX Regulations later this year.
While the Department of Education has released the Interpretation and President Biden issued the executive order, they have not stopped state legislatures and lawmakers from creating legislation and passing law that openly discriminates against transgender athletes. In 2021, at least sixty-nine bills were introduced that would prohibit transgender youth from participating in sports on teams that are consistent with their gender identity.[27]. This trend continued into 2022, with at least thirty states introducing similar anti-trans bills.[28] These bills have often been created by Republican law makers under the guise of “protecting women’s sports.” It is important to note that former Democratic United States Representative Tulsi Gabbard, introduced similar legislation, with similar rhetoric, into the House of Representatives before the end of her public service. The bill did not have much backing at the time.
The acts titled “protection women’s sports” prevent trans athletes from competing against people who share the same gender identity, breaking it down to only allow those of the same biological sex to compete against each other at the amateur level, with most legislation aimed against adolescents. This does not prevent trans students from competing, but rather forces them to play on a team aligning with their biological sex, a gender identity they do not share. In March 2022, Oklahoma governor Kevin Still signed the “Save Women’s Sports Act” into law, stating that it created a “level playing field” for athletes who are biologically female.[29] Using rhetorical questioning, Still asked: “How is it fair for female track athletes or swimmers who have been training since they were 12 to lose a high school competition to a biological male? It’s not. It’s simply not fair, and it will not happen in the state of Oklahoma.”[30] However, it is not that simple. According to a study published by the Human Rights Campaign, only 14% of transgender boys and 12% of transgender girls play sports in high school, meaning that 0.44% of high school athletes are transgender. This makes Stills hypothetical scenario increasingly unlikely to have occurred in the state prior to the legislation being passed and equally unlikely to occur even without the law. Rather, the issue Still hypothesized is only notable when athletes, such as Lia Thomas, win. Katie Barnes, a writer for ESPN, noted that: “[e]ven as a fraction of the athlete population, [there’s] still considerably more transgender young people playing sports than have made headlines. That’s because the overwhelming majority of them don’t win championships.”[31] Simply put, transwomen’s inclusion in women’s sports only becomes an issue, when they win. Unfortunately, legislation like this is not limited to Oklahoma. There are laws in several other states with pending legislation in many others.
The notion of “protecting women’s sports” from trans athletes and introducing corresponding legislation goes against the spirit and purpose of Title IX. Title IX bars discrimination on the basis of sex in educational programs and activities, including sports. As the Supreme Court, Department of Justice, and Department of Education all have stated: discrimination on the basis of gender identity is, in its most simplistic form, an extension of discrimination on the basis of sex, something prohibited by Title IX. This blatant disregard for the purpose of Title IX, has caused the promotion of a narrative that women are “in some form ‘weaker’” or not as “skilled” as men, as their sports need to be “protected” from transwomen who are aiming to compete against individuals who share the same gender identity.[32] These laws weaponize federal policy dedicated to ensuring justice and equity for all people, regardless of sex and gender identity.
It is important to point out that not all Republican legislators feel the laws are needed, breaking with the traditional beliefs held by the party. In Indiana, Republican governor Eric Holcomb vetoed a bill that would have prohibited amateur, student transgender athletes from competing on teams that align with their gender identity. The Governor noted that there were too many unanswered questions and many potential problems “including frustration among students, parents and administrators, lawsuits and lawsuits filed or threatened to have been filed in other states after similar legislation was passed.”[33] Similarly, Utah’s Republican Governor, Spencer Cox, vetoed similar legislation, stating that he: “struggle[s] to understand so much of it and the science is conflicting. When in doubt however, I always try to err on the side of kindness, mercy and compassion.”[34] Governor Cox pointed out that in Utah specifically “[t]here are four transgender players out of 85,000 who are competing in school sports after being ruled eligible by the state’s high school athletic association. Only one competes in girls sports. There are no public concerns about competitive advantages.”[35] Cox added that the four students “are just trying to find some friends and feel like they are a part of something.”[36]
Ultimately, the losers of these policies are the transgender students who just want the opportunity to fit in and play on teams based on their gender identity. The laws restrict access to a unifying fixture of community and developing a sense of self. The Human Rights Campaign has noted that “research has shown that allowing transgender students to access the space consistent with their gender identity . . . have not resulted in problems. On the other hand, forcing transgender students to use sex-segregated facilities contrary to their identity can impose real harm.”[37] Further, a recent study conducted by the Trevor Project, the world’s largest suicide prevention and crisis intervention organization for LGBTQ youth, showed that 94% of LGBTQ youth’s well-being and mental health we negatively impacted by politics.
The political dissonance and conflict between members of the same party highlights that a solution is not readily available and that any resolution will be extremely complicated. In fact, there may not be a solution that satisfies all parties’ interests, or any party’s interests for that matter. However, as we have seen there is a growing friction between state laws and federal laws, specifically related to this issue. It is likely that state laws will ultimately be challenged in courts across the country and ultimately the Supreme Court will have to make a determination on whether Title IX’s protections are afforded to transgender students. Where the Court will land is yet to be seen, but if Bostock is any indication, the anti-trans laws that prohibit transgender students from playing on teams composed of other students that share their same gender identity will be struck down and deemed unconstitutional, protecting the rights of transgender athletes across the country.
[1] Title IX, Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (1972).
[2] Id.
[3] Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e et seq. (1964); see also Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020)
[4] Paul Blake and Will Gretsky, ACC Pulls Championships From North Carolina Over Anti-LGBT Bathroom Law, ABC News, September 14, 2016, https://abcnews.go.com/US/acc-pulls-championships-north-carolina-anti-lgbt-bathroom/story?id=42089282
[5] Dan Levin, North Carolina Reaches Settlement on ‘Bathroom Bill’, The NY Times, July 23, 2019, https://www.nytimes.com/2019/07/23/us/north-carolina-transgender-bathrooms.html
[6] U.S. Dep’t of Justice, Dear Colleague Letter on Transgender Students, May 13, 2016, https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf
[7] Id.
[8] Caitlin Emma, Obama administration releases directive on transgender rights to school bathrooms, Politico, May 12, 2016, https://www.politico.com/story/2016/05/obama-administration-title-ix-transgender-student-rights-223149
[9] Id.
[10] Lola Fadulu, Trump’s Rollback of Transgender Rights Extends Through Entire Government, The NY Times, Dec. 6, 2019 updated Aug. 26, 2020, https://www.nytimes.com/2019/12/06/us/politics/trump-transgender-rights.html
[11] Luke Broadwater and Erica L. Green, DeVos Vows to Withhold Desegregation Aid to Schools Over Transgender Athletes, The NY Times, Sept. 18, 2020, https://www.nytimes.com/2020/09/18/us/transgender-students-betsy-devos.html
[12] U.S. Dep’t of Ed., Letter of Impending Enforcement Action, May 15, 2020, https://www.aclu.org/sites/default/files/field_document/souledoeimpendingenforcementletter.pdf
[13] Scott Skinner-Thompson, Trump Administration Tells Schools: Discriminate Against Trans Athletes or We’ll Defund You, Slate, June 4, 2020, https://slate.com/news-and-politics/2020/06/betsy-devos-transgender-athletes-connecticut.html
[14] Dawn Ennis, Betsy DeVos Tells Connecticut: Ban Transgender Athletes, Or Say Goodbye To Your Federal Funding, Forbes, May 29, 2020 https://www.forbes.com/sites/dawnstaceyennis/2020/05/29/betsy-devos-tells-connecticut-ban-transgender-athletes-or-say-goodbye-to-your-federal-funding/?sh=350c2a041793
[15] Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020)
[16] Id.
[17] Id. at 1747
[18] Exec. Order No. 13988, 86 FR 73601(2021).
[19] U.S. Dep’t of Ed., Federal Register Notice of Interpretation: Enforcement of Title IX of the Education Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, June 2021, https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-noi.pdf
[20] Exec. Order No. 13988, 86 FR 73601(2021).
[21] Id.
[22] Neeru Gupta and Suzann Wilcox, Transgender Students and Title IX: Biden Administration Signals Shift, Nat’l L. Rev., Jan. 29, 2021 https://www.natlawreview.com/article/transgender-students-and-title-ix-biden-administration-signals-shift
[23] U.S. Dep’t of Ed., Federal Register Notice of Interpretation: Enforcement of Title IX of the Education Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, June 2021, https://www2.ed.gov/about/offices/list/ocr/docs/202106-titleix-noi.pdf, at 4.
[24] Id.
[25] Id. at 4-10.
[26] Id. at 3.
[27] Erin Richards, Alia Wong, and Lindsay Schnell, Transgender students protected at school by Title IX, Department of Education says, USA Today, June 16, 2021, https://www.usatoday.com/story/news/education/ 2021/06/16/transgender-students-school-title-ix-education-department/7715053002/
[28] Freedom For All Americans, Legislative Tracker: Anti-Transgender Legislation, Freedom for All Americans (last visited April 26, 2022) https://freedomforallamericans.org/legislative-tracker/anti-transgender-legislation/
[29] Zach Rael, Gov. Kevin Stitt signs controversial ‘Save Women’s Sports Act’ into law, KOCO News 5, Mar. 30, 2022, https://www.koco.com/article/oklahoma-kevin-stitt-signs-save-womens-sports-act/39585573
[30] Id.
[31] Katie Barnes, Young transgender athletes caught in middle of states’ debates, ESPN, Sept. 1, 2021, https://www.espn.com/espn/story/_/id/32115820/young-transgender-athletes-caught-middle-states-debates
[32] Maya Satya Reddy, The Weaponization of Title IX in Sports, The Regulatory Rev., June 29, 2021, https://www.theregreview.org/2021/06/29/reddy-weaponization-of-title-ix-sports/
[33] Andrew Smith and Cornelius Hocker, Why did Gov. Holcomb veto a bill banning trans girls from playing on girls’ sports teams?, WRTV, March 22, 2022 (updated March 23, 2022), https://www.wrtv.com/news/politics/why-did-gov-holcomb-veto-a-bill-banning-trans-girls-from-playing-on-girls-sports-teams
[34] Lindsay Whitehurst and Sam Metz, Utah’s Republican governor becomes latest to veto transgender sports ban, PBS, March 22, 2022, https://www.pbs.org/newshour/politics/utahs-republican-governor-becomes-latest-to-veto-transgender-sports-ban
[35] Id.
[36] Id.
[37] Human Rights Campaign, Anti-Transgender Legislation Spreads nationwide, Bills Targeting Transgender Children Surge, https://assets2.hrc.org/files/assets/resources/HRC-Anti-Trans-Issue-Brief-FINAL-REV2.pdf
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