Transgender athletes saw two significant victories last week: one from the conservative U.S. Supreme Court and the other from the LGBTQ-friendly White House of President Joe Biden. The events triggered a flood of national media attention, and found lesbian tennis legend Martina Navratilova on the side of those wishing to bar transgender women and girls from participating in female sporting events.
Neither of the two developments changes any law at this time, but both represent pushbacks against a wave of hostile legislation in many states.
Biden admin crafts moderate proposal
The Biden administration's proposed rule change, from the U.S. Department of Education, cannot take effect until after a 30-day period during which the public can comment on the proposal and the Biden administration can take those comments into consideration.
LGBTQ legal groups noted that the proposed rule change means that blanket state bans on trans athletes are impermissible and that any restrictions must be supported by evidence and minimize harm to trans students.
The 115-page proposed rule change would amend one section of Title IX of the Education Amendments Act, the federal law that prohibits discrimination "on the basis of sex" in schools that receive federal funding. The section (106.41b) says schools can have separate teams for males and females for contact sports. The Biden administration proposal seeks to add that if a school refuses to allow a transgender student to play on a team that matches their gender identity, the refusal must be based on a need to "minimize harms" and "be substantially related to the achievement of an important educational objective."
"If a recipient adopts or applies sex-related criteria that would limit or deny a student's eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied," states the text of the proposed rule.
"This clarification regarding Title IX's application to sex-related eligibility criteria is particularly important as some states have adopted criteria that categorically limit transgender students' eligibility to participate on male or female athletic teams consistent with their gender identity," stated the Department of Education's Notice of Proposed Rulemaking. DOE said it developed the proposal after getting feedback from stakeholders through a public hearing, listening sessions, and correspondence. It also stated that it referred to policies developed last year by the International Olympic Committee and the National Collegiate Athletic Association.
Biden has pledged support for trans kids as recently as his State of the Union address in February.
LGBTQ legal organizations were generally supportive of the administration's proposal.
"Transgender youth are an integral part of every school across this country. We applaud the Department of Education for recognizing that the law requires that transgender students must be treated fairly and equally and as respected members of their school communities," stated Imani Rupert-Gordon, executive director of the San Francisco-based National Center for Lesbian Rights.
Shannon Minter, a trans man and NCLR's longtime legal director, told Slate reporter Mark Joseph Stern that the proposal is clear that blanket bans on trans athletes are unlawful and that "any restrictions must meet a stringent test and would pass muster only in the context of elite competitions."
Jennifer Levy, senior director of transgender and queer rights at GLBTQ Legal Advocates and Defenders, stated that the organization also supports the proposal.
"The proposed rule prohibits the kind of categorical bans adopted in too many states that are hurting transgender students and that send a dangerous message to all students," Levy stated. "It also allows schools to adopt reasonable policies for inclusion of transgender athletes that take into account differences between sports and across levels of competition. With this proposal the Department is recognizing the importance of fair and equal treatment for transgender student athletes."
Lambda Legal Defense and Education Fund expressed guarded support and concerns.
"This proposed rule includes critical recognition of the importance of participating in sports for transgender youth and shows why 100% of the state bans are invalid," stated Sasha Buchert, Lambda Legal senior attorney and director of its Nonbinary and Transgender Rights Project.
"We are concerned about whether the proposed rule can properly eliminate the discrimination that transgender students experience due to the pervasive bias and ignorance about who they are," Buchert added. "These students must have full and equal chances to participate because participation in athletics provides many long-term benefits for young people, including important health benefits, and chances to develop leadership skills, discipline, and self-confidence. Given the importance of the opportunity to participate in athletics to students' educational experience, we look forward to submitting comments and working with the administration to further remove those remaining bigotry-based barriers to full and equal participation by transgender youth."
But others were critical. Congressmember Cori Bush (D-Missouri), a straight ally, tweeted the proposal was "unacceptable."
"In the face of a barrage of attacks on trans people, especially trans kids, our trans community is counting on us to have their backs. At no point should we 'compromise' on trans rights with transphobic people," Bush wrote.
DOE referred to reports from stakeholder groups and others that indicate how, in schools, participation in sports serves various social, emotional, physical, and cognitive development, such as learning to work as a team.
"The department finds the work of these organizations on this issue to be informative to the extent the organizations aim to balance important interests, minimize harm to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied, and take account of the sport, level of competition, and grade or education level of students," stated the DOE proposal.
"...Youth participation in athletics is associated with many physical, emotional, academic, and interpersonal benefits for students, including increased cognitive performance and creativity, improved educational and occupational skills, higher academic performance and likelihood of graduation from a 4-year college, improved mental health, and improved cardiovascular and muscle fitness, as well as reduced risk of cancer and diabetes, and has the potential to help students develop traits that benefit them in school and throughout life, including teamwork, discipline, resilience, leadership, confidence, social skills, and physical fitness," stated the DOE proposal.
At deadline, the proposed rule change had not yet been published in the Federal Register. Once it is, interested groups and individuals have 30 days to submit comments for DOE to consider before publishing a final rule change.
West Virginia case
A U.S. Supreme Court vote on April 6 temporarily stopped a recently passed ban in West Virginia against transgender athletes. The law is a variation on the numerous laws against transgender students that are being enacted around the country. The West Virginia law requires that public secondary schools and universities bar any student identified as male at birth from participating in a sport designated for female students.
The Supreme Court justices voted 7-2 in West Virginia v. BPJ to reject the state's request that it vacate a federal appeals court injunction in February that prevented the anti-transgender law from taking effect. The injunction is set to remain in place until the appeals court rules on the constitutionality of the law.
The Alliance Defending Freedom joined the state of West Virginia in its request to vacate the 4th U.S. Circuit Court of Appeal's injunction. Twenty-one states joined a brief supporting West Virginia's request, including Florida, Georgia, Texas, and Virginia. And a group of 67 female athletes, coaches, and parents, including lesbian tennis legend Navratilova, submitted a brief in support of the West Virginia law.
"At every level, we are aware that less skilled, less determined males beat higher level female athletes because of innate physical difference in the sexes," said the group's brief. "...When women and girls are asked to compete against male athletes, they are asked to ignore biological reality, the reality that defines female physical bodies."
Justices Clarence Thomas and Samuel Alito, the Supreme Court's most consistently anti-LGBTQ members, submitted a dissent to the majority's denial of West Virginia's request. They said the court is "likely" to take up the issue "in the near future." Specifically, they said, the issue will be whether Title IX of the Education Amendments of 1972 or the 14th Amendment's Equal Protection Clause prohibit a state law "restricting participation in women's or girls' sports based on genes or physiological or anatomical characteristics." The dissent also hinted that the majority's vote may have been based on a procedural matter: that West Virginia took too long — 18 months — before seeking to vacate the lower court injunctions, though that is being contested on appeal.
The West Virginia law was due to go into effect in July 2021, but the American Civil Liberties Union and Lambda Legal Defense and Education Fund filed litigation, BPJ v. West Virginia, to challenge the constitutionality of the law and prevent it from taking effect. Subsequent to filing the lawsuit, the plaintiff in the challenge has been identified as now 12-year-old Becky Pepper-Jackson.
LGBTQ youth helpline
In related news, White House press secretary Karine Jean-Pierre, a lesbian, announced at her daily briefing April 6 that the administration has also created a special helpline for LGBTQ youth. Using the new National Suicide Prevention Lifeline, a transgender or LGBQ person can call 988 and then press the number 3 to be connected to a counselor who has been specifically trained to help LGBTQ+ youth.
"This has been one of the worst weeks of 2023 so far in terms of anti-LGBTQ bills becoming law in states across America," noted Jean-Pierre. She explained that four states — Idaho, Indiana, Kansas, and North Dakota — enacted anti-LGBTQ bills last week. The Kansas law bans transgender kids from school sports. A total of 14 states currently ban health care professionals from providing gender-affirming care.
"Look, this is awful news. Let's be very clear about that," said Jean-Pierre. "LGBTQI+ kids are resilient. They are fierce. They fight back. They're not going anywhere. And we have their back. This administration has their back."
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