Debates over transgender student rights, once centered largely on restrooms and pronouns, have taken on a new focus in the last two years: Whether transgender students can play on sports teams that align with their gender identity.
As the Biden administration asserts that transgender students’ access to single-sex sports teams is protected by federal law, states have taken up dozens of bills seeking to restrict access according to “sex at birth.”
Texas Gov. Gregg Abbott, a Republican, is expected to sign a restrictive sports bill into law, making his state the latest and the largest to do so.
Here’s what you need to know.
There’s been a flurry of legislation about transgender-student rights
Since Idaho passed its first-in-the-nation Fairness in Women’s Sports Act in 2020, nine other states have followed. In addition to Texas, which passed its House Bill 25 in a special legislative session this month, Alabama, Arkansas, Florida, Idaho, Mississippi, Montana, South Dakota, Tennessee, and West Virginia restrict transgender students’ sports participation through law or executive order.
Meanwhile, 17 states and the District of Columbia have state-level nondiscrimination laws that apply to sexual orientation and gender identity, according to a tracker from the LGBTQ student advocacy group GSLEN, and 16 have LGBTQ-inclusive student athletics policies.
Enforcing bills’ restrictions can be logistically difficult
State laws set up different criteria for defining whether a student can play on a sports team that aligns with their gender identity: by anatomy, DNA, or students’ birth certificate.
Texas’s bill codifies a policy already that has already been used for five years by the state’s University Interscholastic League, which governs school sports. That policy restricts students to participating on teams that match the sex marked on their birth certificates. It allows one exception: girls can play boys sports, like football, if there is no equivalent girls team.
But the league had faced increasing questions from schools as students legally changed the sex on their birth certificates as children and teens, UIL Policy Director Jamey Harrison told state lawmakers in an Oct. 6 hearing of a special committee formed to consider the bill.
“That simply had not been a question before that,” he said. “UIL as a state agency is not in a legal position, in our opinion, to question a legal document.”
Advocates for transgender students assert that a change to a legal document should bring with it full recognition of their gender identity in sports and schools. But the bill’s sponsor, Rep. Valoree Swanson, a Republican, said transgender girls would have an unfair advantage over their cisgender peers, even if they had legally changed their birth certificates.
So Swanson’s bill requires schools to determine a student’s sex based on information “entered at or near the time of the student’s birth” on their birth certificates. It does not define “on or near,” and it does not detail how school districts should enforce that criteria.
UIL does not “have an investigative arm,” Harrison told lawmakers. “Schools are responsible for determining that their students are in compliance with eligibility rules.”
Around the country, some school leaders and LGBTQ rights groups have said enforcing such policies can be more difficult than lawmakers anticipate.
Idaho’s law, which became a template for bills in other states, says that a student with a “disputed” sex may provide a signed statement from a physician that “shall indicate the student’s sex based solely on: The student’s internal and external reproductive anatomy; The student’s normal endogenously produced levels of testosterone; An analysis of the student’s genetic makeup.”
Civil rights groups immediately raised concerns about whose sex would be considered “disputed” and whether girls—both cisgender and transgender—would be harmfully singled out for sex verification if they don’t meet feminine gender stereotypes.
“There’s no seriousness of purpose. There’s no real solutions,” said Cathryn Oakley, state legislative director and senior counsel for the Human Rights Campaign, which urged Abbott to veto the Texas bill. “These [bills] are harassing girls who happen to not look like a Barbie doll and want to play sports.”
Transgender student advocates dispute claims of competitive advantage
Backers of bills like the one in Texas say transgender girls will have an unfair competitive advantage in girls sports. They point to differences like tee boxes that are closer to the hole in women’s golf, faster average run times for men’s runners, and potential differences in testosterone levels, particularly for teens who have not received gender-affirming care like hormone blockers.
“If a girl plays on a boys team, that’s playing up, whereas if a guy plays on a girls team, that’s playing down,” Swanson, the Texas lawmaker, told her colleagues in a hearing while referring to transgender girls as biologically male.
She cited a 1982 case in which the U.S. Court of Appeals for the Ninth Circuit ruled that boys in Arizona could not play on girls-only volleyball teams.
“The record makes clear that due to average physiological differences, males would displace females to a substantial extent if they were allowed to compete for positions on the volleyball team,” the court ruled.
But advocates for transgender girls, including some Texas lawmakers who voted against the bill, argue they live their life as girls in every capacity, and it would be unfair to require them to “out themselves” to play. Under existing Texas rules, a transgender boy was required to wrestle against girls in the 2017 state championship, even though he wanted to compete against boys.
Advocates point to natural ranges of testosterone and muscle mass between cisgender children to deny that a transgender athlete would have a certain physical advantage.
In August 2020, a federal district court judge blocked Idaho’s law from taking effect while he hears a lawsuit brought by the ACLU of Idaho on behalf of Lindsay Hecox, a transgender track athlete at Boise State University and a cisgender female student, identified in court papers as Jane Doe.
U.S. District Judge David C. Nye wrote in his ruling that the small number of transgender women’s athletes “coupled with the significant dispute regarding whether such athletes actually have physiological advantages over cisgender women when they have undergone hormone suppression in particular, suggest the act’s categorical exclusion of transgender women athletes has no relationship to ensuring equality and opportunities for female athletes in Idaho.”
Most of the disputes center on older transgender girls who have not had gender-affirming care, but the question of advantage is “not as cut and dry as some people think,” said Oakley, of the Human Rights Campaign. In some states, transgender athletes have successfully competed for years, and state laws create overly broad mandates that apply to young children as well as high school and collegiate athletes, she said.
“It’s not that trans students began playing sports two years ago. It’s not that trans youth began existing two years ago. It’s not like they just fell out of the sky,” Oakley said. “Trans youth have been playing sports for decades.”
Lawmakers cite limited examples when defending sports bills
Lawmakers who support restrictions on transgender student athletes often cite a small handful of examples to make their claims, at times referring to situations that didn’t occur in their own states. That’s led some advocates to question if there is a problem worthy of a legislative response.
A March 2021 analysis by the Associated Press found that few lawmakers could cite any examples of concerns about transgender athletes’ participation in their state. Many state lawmakers cite a case brought by three cisgender female track athletes in Connecticut who argued that the transgender participation policy of the Connecticut Interscholastic Athletics Association violates their Title IX rights, denying them benefits “by permitting the participation of biologically male students in girls interscholastic track.”
There are few sources of data on the number of young transgender Americans, in part because many states don’t include questions about gender identity on federal administered school questionnaires. In 2017, the Williams Institute, a think tank at the UCLA law school that focuses on LGBTQ rights, estimated that about 0.7 percent of Americans ages 13-17 identify as transgender. The organization is working to update that estimate.
Swanson, who sponsored the Texas bill, told lawmakers in a Texas hearing that she was trying to stop a problem before it starts. She likened her sports bill to the state’s failure to address concerns with its electric grid before an ice storm left many residents without power for extended periods.
“Our constituents expect us to see problems that are coming and not wait for everything to fall apart and try to fix it,” she said.
Federal courts have sided with transgender students following a U.S. Supreme Court decision
Bills like in Texas could set the stage up for a clash with the federal government over student rights.
“The president’s view is that transgender rights are human rights, whether for adults or for kids, and that continues to be our policy,” White House Press Secretary Jen Psaki said when asked about the Texas bill Tuesday.
In a June 2021 memo, the U.S. Department of Education said schools violate the prohibitions against sex discrimination in Title IX when they discriminate against students based on their sexual orientation or gender identity.
The department cited the Supreme Court’s 2020 decision in Bostock v. Clayton County, Ga., which held that a prohibition of sex discrimination in Title VII, the federal employment law, prohibits unequal treatment on the basis of sexual orientation or gender identity. That interpretation extends to Title IX’s protections, the Education Department argued.
Some federal courts have used similar arguments to rule in favor of transgender students. Others have cited the equal protection clause of the U.S. Constitution in preliminary rulings.
“The weight of the law really is on the side of the trans students after Bostock,” Mallory said.
Despite growing legal support for transgender students, however, concerns about school policies have animated school board meetings and state legislative races around the country. And some GOP candidates have sought to lump such policies about transgender students in with schools’ decisions about issues like addressing race in the classroom and COVID-19 precautions to support claims that schools are unresponsive to conservative parents’ concerns.
Such claims have become a key issue in the Virginia governor’s race, seen as a testing ground for messaging in the midterm elections.