Federal

Biden Legal Team Steps Back From Trump Stance on Transgender Female Sports Participation

By Mark Walsh — February 24, 2021 4 min read
Bloomfield High School transgender athlete Terry Miller, second from left, wins the final of the 55-meter dash over transgender athlete Andraya Yearwood, far left, and other runners in the Connecticut girls Class S indoor track meet at Hillhouse High School in New Haven, Conn on Feb. 7, 2019. Transgender athletes are getting an ally in the White House next week as they seek to participate as their identified gender in high school and college sports. Attorneys on both sides say they expect President-elect Joe Biden’s Department of Education will switch sides in legal battles that could go a long way in determining whether transgender athletes are treated by the sex on their birth certificates or by how they identify.

President Joe Biden’s administration this week withdrew legal views filed by the Trump administration in hot-button cases in two statesthat had argued transgender female athletes should not permitted to compete in girls’ or women’s sports.

The disputes involve transgender-supportive sports rules in Connecticut and, at the opposite end of the spectrum, an Idaho law that bars transgender female athletes from participating in girls’ sports.

In the Connecticut matter, the U.S. Department of Education’s office for civil rights informed parties that it was withdrawing an OCR letter issued last year that had interpreted Title IX of the Education Amendments of 1972 and its regulations to mean that transgender female athletes could not take the spots of “biologically female” participants in track and field or other sports.

The Trump administration had issued its letter in the Connecticut case on May 15, though a “revised” OCR letter issued Aug. 31 became the operative one. Those letters said that the Connecticut Interscholastic Athletic Conference’s policy of “permitting the participation of biologically male students in girls interscholastic track … denied female student-athletes benefits and opportunities” under Title IX, which bars discrimination based on sex in federally funded education programs.

In a Feb. 23 letter, the Biden administration said that it was withdrawing the Trump administration’s OCR stance for two reasons. First, the OCR interpretation had not gone through the proper review required for a guidance document on a regulatory matter. Secondly, the new letter referred to an executive order signed by Biden on Jan. 20 that stressed the new administration’s efforts to combat discrimination based on gender identity or sexual orientation.

The new letter says the Education Department will review the OCR complaints filed by cisgender female athletes against the CIAC and several Connecticut school districts “pursuant” to the president’s executive order.

“Therefore, the [Aug. 31] Revised Letter’s statement of OCR’s interpretation of Title IX and its implementing regulations should not be relied upon in this or any other matter,” said the new letter, signed by Suzanne B. Goldberg, the Education Department’s acting assistant secretary for civil rights.

The Alliance Defending Freedom, the Scottsdale, Ariz.-based legal organization that filed the OCR complaints on behalf of three cisgender female athletes, criticized the Biden administration’s action.

“Defying common sense, the U.S. Department of Education under the Biden administration has abandoned its support for the deserving female athletes who have been sidelined and outpaced by males dominating girls’ sports,” Christiana Holcomb, an ADF legal counsel, said in a statement. “But the government’s politically motivated reversal can’t change biological reality or the correct interpretation of the law.”

The cisgender girls, with the support of the ADF, also sued the CIAC over its transgender-inclusive policy. That case, Soule v. Connecticut Association of Schools, is pending in federal district court in Hartford. The Biden administration filed papers, also on Feb. 23, in that court withdrawing a federal statement of interest that the Trump administration had filed.

The American Civil Liberties Union, which represents the two the two transgender athletes at the center of the debate in Connecticut, Terry Miller and Andraya Yearwood, praised the Biden administration’s moves.

“Our clients Andraya and Terry ran on the girls’ team because they are girls,” said Chase Strangio, the deputy director for Trans Justice with the ACLU. “They had no other options and ran because they loved the sport and were affirmed and celebrated by their schools, coaches, and teammates. The Biden administration’s actions show that transgender students are protected from discrimination under federal law.”

Withdrawing From Idaho Case

In a related move, the Biden administration on Tuesday filed a statement with a federal appeals court withdrawing a brief that the Trump administration had filed last year supporting an Idaho law that bars transgender female athletes from participating on girls’ or women’s school athletic teams.

A federal district judge in Idaho last year issued an injunction blocking the law, ruling that it likely violated the 14th Amendment’s equal-protection clause. The U.S. Department of Justice last year filed a brief supporting Idaho’s appeal with the U.S. Court of Appeals for the 9th Circuit, in San Francisco.

“States may require separate athletic teams for biological females and biological males because the sexes are dissimilarly situated In athletics,” said the Trump administration brief in Hecox v. Little.

In the new filing, Pamela S. Karlan, the principal deputy assistant attorney general, told the 9th Circuit court that “after the change in administration, the government has reconsidered the matter and hereby notifies the court that it withdraws its amicus brief.”

The Biden administration’s moves come as transgender issues in education remain a topic of intense debate. Republicans on the Senate education committee this month questioned Miguel Cardona, Biden’s nominee for secretary of eduation, about transgender student rights. And lawmakers in at least 10 states are considering restrictions on transgender female sports participation similar to Idaho’s law.

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