Can the Playing Field be Level? Transgender Athletes’ Participation in Sports

Can the Playing Field be Level? Transgender Athletes’ Participation in Sports

Ashley J. Beth
Associate Editor
Loyola University Chicago School of Law, JD 2022

To ensure safety and the best experience for athletes to excel in sports, eligibility to play on certain teams and at varying levels of competition has long depended on individuals’ biological factors, the primary factor being sex. This established practice of separating sports participation by two categories, male and female based upon the sex assigned at birth is being reexamined, particularly as it relates to individuals who were born male, now identify as female, and desire to compete in women’s sports. The federal government, state governments, and sport governing bodies are addressing the matters presented by transgender athletes, with opposition seemingly being the only commonality among the parties involved.

For the purposes of this fact-based analysis, I refer to individuals who identify with a gender that is different from the sex on their birth certificate as “transgender” and those who identify with the sex on their birth certificate as “cisgender.”

Federal Law: presidential administration changes and Title IX

The Obama administration led significant changes in transgender rights pertaining to education at the federal level, which were then effectively overturned by the Trump administration. Under President Trump, the duty to promulgate rules regarding transgender rights was relinquished to state and local entities. Upon President Joe Biden’s first day in office, he signed an executive order prohibiting discrimination based on gender identity in school sports. The order calls into question whether the federal government will deny federal funding for education to states, which have enacted or are enacting laws denying individuals who have transitioned from male to female the right to participate in sports.

Transgender athlete participation in sports presents unique questions as they relate to Title IX. Enacted as part of the Education Amendments of 1972, the law is most often associated with ensuring equal opportunity for women in athletics programs. While Title IX lacks express language regarding transgender individuals or gender identity, multiple courts and federal agencies have acknowledged that the term “sex” in the law is ambiguous. Additionally, bullying based on gender-based discrimination is prohibited by the law, yet both transgender and cisgender individuals feel bullied by decisions that favor one over the other. Transgender individuals are denied equal treatment in sports opportunities that are accorded to those with whom they identify. Cisgender individuals are denied equal opportunity by competing against individuals who they feel have an unfair biological advantage. Compliance with federal law is complicated and will largely depend on interpretations of our Constitution and relevant case law that may evolve as society is trending towards endorsing LGBTQ+ rights.

State law and sport governing bodies

In addition to federal law, transgender sports participation is governed by inconsistent laws and regulations across the states. Absent state law, policy guidelines or rulemaking; youth and high school athletic association guidelines govern. Many of the states that allow transgender athletes to compete among other individuals with whom they identify have modeled their laws off of athletic governing bodies’ guidelines, such as the National Collegiate Athletic Association (“NCAA”) and the International Olympic Committee (“IOC”). The transgender participation policy of the NCAA allows a student who has transitioned from male to female to compete in female sports after completing a year of testosterone suppression. The IOC requires transgender athletes competing in women’s sports to demonstrate testosterone levels below 10 nanomoles per liter for one year.

The states are essentially divided in their response, with nineteen states allowing full inclusion of transgender individuals, twenty with pending bills limiting transgender athlete participation, and the remainder with no policies. Connecticut has garnered national attention as one of nineteen states that require schools to allow transgender athletes to compete in women’s sports consistent with their identified gender. In Soule et al. v. Connecticut Association of Schools, Inc., four Connecticut high school girls filed a federal discrimination lawsuit against the Connecticut Interscholastic Athletic Conference (“CIAC”).  They allege that the CIAC policy denied them equal opportunities for participation and success in statewide athletics. Their alleged injury includes the loss of potential college scholarships, reasoning that the transgender athletes permitted to compete, denied them the ability to place in the top two spots in their state track meet. The argument follows that because they were born male, they are biologically at an advantage.

While several states have requirements for athletes playing on sports teams that don’t align with their sex assigned at birth, Idaho has been the only state to entirely ban transgender individuals from competing in sports in its state. The law enacted in July 2020, Fairness in Women’s Sports Act, has been temporarily blocked by a federal judge. The ban was challenged in federal court by The National Women’s Law Center and other LGBTQ+ rights activists. They alleged that it violated equal protection guaranteed by the Fourteenth Amendment. Specifically, they allege that this is clear sex-based discrimination, denying transgender individuals the same opportunity to participate in school athletics as their peers. Further, it is suggested that athletic governing bodies are best suited to address these matters on a case-by-case basis as these issues are highly sensitive and personal. A state ban does not allow for this individual consideration.

Where do we go from here?

Sports participation is fundamental to youth development. Essential to a child’s most beneficial participation in sports is balancing inclusivity, equability, and safety. The matters presented by transgender athletes are especially perplexing in efforts to balance those factors. The two positions seem irreconcilable, as evidenced by a near equal divide among the states. With democrats controlling the federal government, a ban on transgender athletes can likely be ruled out. There are several decisions the federal courts or government rulemaking entities can weigh in on to set the precedence, yet we will likely have to wait several years for any significant decisions to be made.