State lawmakers around the country are battling on a new front over the rights of transgender students, debating legislation that would prohibit them from playing on single-sex sports teams with their cisgender peers.
The bills— in at least 10 states so far—come as civil rights advocates nationwide are gearing up for what could be a renewed fight between states and the federal government over differing interpretations of federal civil rights laws.
At issue: whether the federal sex-discrimination protections in Title IX apply to gender identity, protecting transgender students’ rights at school.
Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.
“Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports,” said that order, which directed cabinet officials to ensure their agencies apply protections in sex discrimination laws to sexual orientation and gender identity.
While the state-level focus in previous years was largely on so-called “bathroom bills” that sought to restrict students’ ability to use facilities that align with their gender identity, the focus this year is largely on sports. Legislators backing those bills have said that transgender girls would have a competitive advantage on women’s teams. The ACLU has pledged to fight any resulting state laws in court.
On the horizon: a possible return to state-federal fights similar to those that marked the end of the Obama administration, when North Carolina passed a restrictive “bathroom bill” in defiance of federal guidance on the rights of transgender students, guidance that was later rescinded by the Trump administration.
Transgender students are caught in the middle
Transgender students and their families and schools and districts are left navigating conflicting directives about those students’ rights.
“Once I was on board and I understood it, I was geared up for a fight,” said Jaime Gabrielli, a Helena mother of a transgender son, who has testified against state-level bills in Montana. “I never got one. Until now.”
But school law experts believe transgender students now have more direct legal support for their cause than they did under the Obama administration, especially in the area of school facilities access.
Biden’s executive order cited the U.S. 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.
“As goes Title VII in terms of sex and gender, so goes Title IX,” said Francisco M. Negrón, chief legal officer of the National School Boards Association. “When you’re talking about federal legislation, you want consistency.”
But, while more and more school systems have applied that legal standard to transgender student policies during the school day, he said, the question of athletics access could be “a challenging issue for districts” in states that pass new restrictions.
Idaho became the first state to enact such a restriction when Republican Gov. Brad Little signed the “Fairness in Women’s Sports Act” into law in April 2020.
In August, a federal district court judge blocked that 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. Doe plays on the girls’ soccer team at Boise High School, and is concerned about being subjected to invasive “sex verification” testing under the new law. The case argues that the state law violates Title IX and the equal protection clause of the constitution.
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.”
That legal setback didn’t stop the bill’s sponsor, Idaho Rep. Barbara Ehardt, a Republican who played and coached college basketball, from traveling to neighboring Montana Jan. 18 to testify in support of a similar bill there.
“If you don’t pass legislation such as this, it will come to the day where there will be no room, no place, for girls and women to compete,” Ehardt said, according to the Idaho Falls Post Register.
Montana’s “Save Women’s Sports Act” would require public school athletics teams to be “designated based on biological sex.”
The state’s House of Representatives passed that bill Jan. 27 after striking language originally included in its text that said men generally have “denser, stronger bones, tendons, and ligaments” and “larger hearts, greater lung volume per body mass, a higher red blood cell count, and higher hemoglobin,” giving them an athletic advantage.
During debate on the bill, Montana Democrats argued it could violate Title IX, putting at risk nearly $500 million in federal education funding for the state’s K-12 schools.
“Schools cannot afford to jeopardize this funding, nor should we be tasked with implementing a bill such as this,” said Rep. Mark Thane, a former school superintendent.
I never really heard awful things come out of people’s mouths until the legislature.
The arguments are personal for transgender children and their families, even if they have no intention of participating in school sports, said Gabrielli, the Helena mother who testified against the bill and another measure that would prohibit medical treatments like hormone therapy for transgender children.
Debates over whether transgender children “just want attention” or a competitive advantage make them feel like their very existence is being questioned, said Gabrielli, whose 16-year-old son Justin, a sophomore, began publicly identifying as male when he started high school.
“That is so not true,” she said. “He wants attention for all of the things teenage boys do—being funny, and smart, and good looking, and things like that,” but not for his gender.
Justin, who had competed in track and basketball, stopped playing sports after 8th grade, she said.
When Gabrielli met with school administrators to discuss his transition, she was prepared for a fight but was surprised to find them ready to give him access to the boy’s restroom, use male pronouns in connection with him, and make accommodations for him in the gym’s locker rooms during physical education classes by allowing him to use an office to change.
“I was ready for the bullying. I was ready for all of that,” Gabrielli said. “There have been situations, but ... I never really heard awful things come out of people’s mouths until the legislature.”
Questions about competitive advantage
The question of whether transgender girls have a competitive advantage is at the center of federal lawsuit in Connecticut. Three cisgender female track athletes there argue 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.”
The participation of two transgender athletes, who were identified as male at birth, had drawn complaints from some parents. They had support from the Trump administration, which filed legal briefs that argued in support of the plaintiffs, threatened enforcement actions against their schools, and argued in an internal memo that the Bostock employment case had no bearing on the agency’s interpretation of Title IX.
The Supreme Court ruling in Bostock “does not diminish the relevance of biological sex in athletics, and does not address the validity of the department’s historic measures to ensure biological females (girls and women) have equal opportunities to participate in athletics because males and females are not similarly situated with respect to athletic competition,” the memo said.
In Congress, former U.S. Rep. Tulsi Gabbard, D-Hawaii, filed a “Protect Women’s Sports Act” last year. A group of Republican representatives introduced a similar bill Jan. 21.
LGBTQ student advocates say transgender girls don’t have an inherent advantage over their cisgender peers. There are variations in factors like muscle mass and natural testosterone levels among cisgender women, they argue.
Some transgender girls also take hormone blockers to pause the effects of puberty, but advocacy groups say such treatment should not be a prerequisite for participation in sports because it can be costly and inaccessible to some students.
Federal interpretation of Title IX takes a U-turn
Biden’s executive order directly countered the Trump administration’s arguments, explicitly mentioning Title IX. The Education and Justice departments, whose new leadership is still to be confirmed by the Senate, have not yet put in place any guidance or rules detailing schools’ obligations under that order.
A spokesperson for the Education Department did not answer questions about potential guidance for schools, when it may be issued, or what it would include, saying only that the agency looks forward “to fulfilling the Biden-Harris administration’s commitment to LGBTQ students being able to learn and thrive in schools that protect them from discrimination.”
Organizations including GLSEN, an LGBTQ students’ rights group, are heartened by that position. The support of sports teams can provide a buffer for students, helping them weather the difficulties of coming out at school, said a.t. Furuya, youth programs manager for GLSEN.
“I’ve known students who’ve given up playing athletics because they were too afraid to go through the process. ‘Will my teammates accept me? Will my coach accept me?’” Furuya said. “We are making it so hard for trans kids to exist. And we just keep making it harder.”
And the legal landscape for transgender students is inconsistent. Though states like Montana and North Dakota will consider new restrictions this year, 17 states and the District of Columbia have state-level nondiscrimination laws that apply to sexual orientation and gender identity, according to a GLSEN tracker, and 16 have LGBTQ-inclusive student athletics policies.
In one of those states, Massachusetts, 12th-grader Esmée Silverman will soon decide what sport to play.
Esmée stopped playing tennis after her sophomore year of high school, when she decided to publicly identify as a girl. Still “closeted,” the transgender student played on the boys’ team until then.
Now, after feeling supported by classmates and teachers, she’s considered returning to athletics, which has lead to some internal debate. If Esmée plays on the co-ed rugby team, she can avoid confronting any concerns about competing against cisgender classmates. But she’s leaning toward playing on the girls’ tennis team, which she sees as a chance to live fully in her identity.
At six-feet-tall, and built “like a twig,” Esmée takes estrogen and doesn’t see herself as having a competitive advantage against girls her age. Sports have been important to her family.
“I’ve definitely had my reservations about playing as my identity because I don’t like bothering people. I’m a huge pacifist. I don’t like the scrutiny,” Esmée said. “At the same time, I feel like playing on the girls’ tennis team is a part of me. I feel like playing on that team would make a statement.”
A version of this article appeared in the February 03, 2021 edition of Education Week as Schools Offer New Front in State Battles Over Transgender Students’ Rights