WASHINGTON — Transgender athletes in school sports left in limbo for months finally received an updated timeline from the Biden administration on its plan to update guidelines intended to protect them from discrimination.
In April, the Biden administration proposed a draft to update Title IX to include clear guidelines to protect for transgender athletes. Title IX, which prohibits sex discrimination against students who attend schools that receive federal funding, has not previously addressed transgender student-athletes. But ever since then, the government has been inundated with comments about the proposed rule.
The Education Department delayed the release of the proposed rules in May and initially planned to release the guidelines in October. But since then, the guidelines have faced delays with no clear release date set. In early December the Education Department announced the guidelines are set to be released in March.
“The Biden administration has said they’re going to tell states they can’t just uniformly ban individuals not born female, from participating in female athletics,” said Stephen Vaughan, a law firm partner at Womble Bond Dickinson who specializes in Title IX. “In doing that, there will be a direct conflict between the law in many states and what the regulations require.”
With the 2024 election on the horizon, Republicans have sought to leverage the issue of trans athletes to win over voters. In the meantime, 23 states have passed laws to ban transgender athletes from participating in sports to allegedly protect female athletics.
The federal guidelines, once released, could overrule widespread bans popping up around the country that are a violation of Title IX. But the administration is facing intense backlash to the proposed rule, and federal courts have been drawn into the fight.
These updates on the guidelines are important to transgender advocates like Kaig Lightner.
Growing up, Lightner primarily identified as an athlete. Participating in softball, basketball, rowing and soccer, served as Lightner’s anchor as he navigated through life as a transgender person.
“If I had not had sports, I don’t think I would be alive,” said Lightner.
Sports provided Lightner an outlet to forget about the shame, hurt and trauma he experienced on a daily basis. Being on teams allowed him to be part of something larger than himself, he said. His mind would focus on becoming the fastest, strongest and best rather than the discrimination he faced from the outside world.
To give back to young athletes experiencing the same discrimination he faced as a kid, Lightner founded Portland Community Football club, the only soccer club in the country with all-gender inclusive teams.
“We have to think about the kids,” Lightner said, who is now 43 years old. “If the support I had received was suddenly taken away from me as a young kid, I would have been devastated.”
Lightner’s story, like several other transgender athletes, reflects the realities they’ve faced in sports: backlash at the state and federal levels.
Laws blocked and could go to Supreme Court
Temporary injunctions in Arizona, Idaho, West Virginia and Utah continue to block enforcement of many state laws. As new legislation and litigation continue to develop in states across the country, many believe this is just the beginning of a long legal battle that could ultimately end up in the hands of the conservative Supreme Court.
As uncertainties continue to rise about how the Supreme Court might rule, many look at previous cases as an indication of what to expect.
In 2020, the conservative Supreme Court, in a 6-3 decision in Bostock v. Clayton County case, ruled that Title VII of the 1964 Civil Rights Act prohibits employers from discriminating against their employees on the basis of sexual orientation and gender identity.
“I think the Bostock decision probably surprised many who would have expected the Supreme Court to go a different way,” Vaughan said. “But what doesn’t surprise me is that if we’re seeing individuals engaging in discriminatory practices against someone, regardless of their identity, those impacted are still human beings and they’re to be protected.”
While Bostock expanded protections for transgender employees, Vaughan said he doesn’t expect a future case for transgender athletes to be as clear.
But that decision relied heavily on Title VII, which protects employees from discrimination; protections for transgender athletes fall under Title IX, which protects students. Therefore, Vaughan said he believes their arguments could be different.
Numerous groups have opposed having transgender student-athletes participate in female sports, arguing that allowing transgender athletes to participate discriminates against women in violation of Title IX.
“I think ultimately, a lot of people are deciding to go against women’s rights and rights that women have fought for for so many years,” said Paula Scanlan, spokeswoman for the conservative group Independent Women’s Forum. “Title IX was passed 51 years ago, and this would be moving backward if they decide to rewrite what it means to be a woman.”
The guidelines the Education Department proposed, however, would allow schools the “flexibility to develop team eligibility criteria that serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury.”
The Independent Women’s Forum, a national organization that is fighting transgender-inclusive efforts in school sports, believes that over the years the government has “unconstitutionally twisted the law beyond recognition.”
Citing instances of transgender athletes winning competition, including former University of Pennsylvania swimmer Lia Thomas, who was the first transgender athlete to win an NCAA Division I national championship, some politicians and groups believe allowing transgender athletes to participate creates an unfair advantage.
“We’ve always had female and male categories in sports to provide opportunities for everyone,” Scanlan said. “If there were no such thing as these categories, sports would be dominated by males.”
Scanlan pointed to natural advantages male athletes have including overall strength and body structures that she said highlight the difference between men and women.
“Being a female athlete is something that takes a lot of time and dedication,” Scanlan said. “We believe that girls’ scholarships should only go to girls and they should not be taken by male individuals. We have the rights to our own spaces and our own sports teams.”
Congress steps into the fight
The views of the Independent Women’s Forum have dominated Congress as the GOP has worked to pass legislation.
Days after the Biden administration released the notice of proposed rulemaking, House GOP members passed the “Protecting Women and Girls in Sports Act” in a 219-203 party-line vote, solidifying the GOP’s stance on the issue.
Democrats in the House urged the Democratic-led Senate to kill the bill, and Democratic senators successfully blocked their colleagues from passing legislation. President Joe Biden had also vowed to veto the bill if it reached his desk.
“There’s a lot we could be doing to protect women in sports: addressing sexual harassment, discrimination in pay and other working conditions,” said Rep. Suzanne Bonamici (D-Ore.). “The bill that my Republican colleagues passed will not do that.”
As GOP lawmakers continue to fight for bans to protect female athletics, Bonamici said she believes these recent bans are tied to trends of rising discrimination in Congress against members of the LGBTQ community, particularly transgender women.
The bill, which would prohibit any student-athlete whose biological sex at birth was male from participating in athletic programs for women and girls, makes no mention of the participation on men’s teams of athletes whose biological sex at birth was female.
“It’s striking that they only care about transgender women, and they don’t care about transgender men,” Bonamici said. “Theirs is just a very narrow-minded, uninformed view of who transgender people really are.”
Pointing to book bans and minimal access to gender-affirming care, Bonamici said these attacks on transgender youth are based on “very egregious misinformation about what’s actually happening.”
Bonamici, who voted against the bill in April, has been joined by her Democratic colleagues as she stands by the protection of transgender athletes in sports.
“Sometimes you win and sometimes you don’t,” Bonamici said as she challenged claims about unfairness.
Studies show that transgender youth continue to face an increased risk of suicide and poor mental health, which is something Bonamici said she believes bans would only worsen.
As she awaits the rule-making changes from the Biden administration, she said she hopes others look at Lightner’s work within her district to create an inclusive team environment for all, as an example of what can be achieved.
“I think a lot of people haven’t really met a transgender person that they know of,” Bonamici said. “They’re just people, being who they are and living as their true selves, which in the United States of America everyone should have the freedom to do while being free from discrimination.”
