The Biden administration has put on hold a plan to prohibit across-the-board bans on transgender athletes on school teams during an election year in which Republicans are rallying around restrictions on trans youths. But GOP state leaders are making sure voters know the issue is still on the table.
At least two dozen Republican-controlled states have sued over a different federal regulation being implemented to protect the rights of transgender students that they argue would require governments to allow transgender girls to play on girls teams.
The rule they are challenging doesn't specifically mention transgender athletes. It spells out that Title IX, the landmark 1972 law originally passed to address women's rights at schools and colleges receiving federal money, also bars discrimination based on sexual orientation and gender identity.
Republicans now are trying to keep the focus on sports, appealing to parents' and athletes' sensitivities over fairness in competition. They have student athletes signing on as plaintiffs and appearing alongside attorneys general at news conferences announcing the lawsuits.
The states argue the new rule would open the door to forcing schools to allow transgender athletes to compete on teams aligning with their gender identity, even if the rule doesn’t say so specifically. They may have a point.
The new regulation “gives a pretty good sense that says, ‘You can’t have a rule that says if you’re transgender, you can’t participate,’” said Harper Seldin, an attorney for the American Civil Liberties Union, which has represented trans athletes in unrelated cases.
He said that while he hopes separate sports-related regulations will back that up, that's not yet clear.
Advocates for transgender athletes say the GOP officials' claims are more rooted in politics than reality and are aimed more at undercutting litigation against state restrictions on transgender athletes.
“It is puzzling that these folks are talking about challenging a rule that does not do what they say is the thing they’re objecting to,” said Cathryn Oakley, senior director of legal policy for the Human Rights Campaign, a leading LGBTQ+ advocacy group. “It’s pretty hard to see how they can expect to be taken seriously when they don’t see to know what the content of the rule they’re challenging is.”
And many transgender youths and their families say restrictions unfairly paint trans athletes as a risk. Erik Cole-Johnson, a New Hampshire father who spoke against a proposed ban, said being able to compete in cross-country running and Nordic skiing has allowed his daughter to flourish.
“My daughter’s not a boogeyman; my daughter’s not a threat,” Cole-Johnson told a state Senate panel in April as it heard the bill, now on Republican Gov. Chris Sununu’s desk. “Transgender girls are not a threat.”
New Hampshire is not among the states challenging the rule. The GOP challenges have been filed in several federal circuit courts in hopes that one will halt the new rule before it takes effect in August. Several states, including Arkansas and Oklahoma, have also said they don't plan to comply.
The White House originally planned to include a new policy forbidding schools from enacting outright bans on transgender athletes, but that was put on hold in what was widely seen as a political move to avert controversy before the fall election. The Education Department said it has received more than 150,000 public comments on the athletics policy but didn't give a timeline for release of the rule.
A lawsuit filed by Kansas Attorney General Kris Kobach said the lack of guidance on athletics in the rule that instead is taking effect is a “red herring,” given the department’s default position that Title IX doesn’t allow discrimination based on sex.
Many states challenging the rule have also enacted laws placing restrictions on transgender athletes, as well as on the restrooms and changing rooms they can use or pronouns they can be addressed by at school, policies that could also be voided by the regulations.
“I don’t want any girl to lose her right to a fair playing field or her right to use a safe place to change,” said Amelia Ford, a high school basketball player from Brookland, Arkansas, who is a plaintiff in a lawsuit filed in federal court in Missouri challenging the enacted rule.
In the discussion over trans people competing in sports in line with their gender identity, each side points to limited research that backs their viewpoints about whether trans women and girls have an edge over cisgender women and girls.
By some accounts, given the relatively small population of transgender people — about 2.74% of all people ages 13-24 nationwide, according to estimates by UCLA Law's Williams Institute — and the even lower number of those who compete, disputes over fairness in school sports don't appear to be widespread. Many lawmakers who have pushed for athletic bans haven't cited examples in their own states, instead pointing to a handful of high-profile cases elsewhere, such as swimmer Lia Thomas.
When Arkansas Gov. Sarah Huckabee Sanders signed an executive order refusing to comply with the latest Title IX regulations, she was joined by former Kentucky swimmer Riley Gaines, who was among more than a dozen college athletes who sued the NCAA for allowing Thomas to compete at the national championships in 2022.
The lawsuits also come as GOP states try to get the U.S. Supreme Court to weigh in on their restrictions on transgender athletes. West Virginia is appealing a ruling that allowed a transgender athlete to compete on her middle school teams. The ruling last month from the 4th U.S. Circuit Court of Appeals found that the ban violated the student's rights under Title IX.
“Many of these cases are premature and certainly just trying to undercut the basic notion that trans students are protected under Title IX and attempting to continue the exclusions that we have seen in states across the country with respect to athletics,” said Paul Castillo, an attorney with Lambda Legal.
