Transgender athletes saw two significant victories last week: one from the conservative U.S. Supreme Court and the other from the LGBTQ-friendly White House of President Joe Biden. The events triggered a flood of national media attention, and found lesbian tennis legend Martina Navratilova on the side of those wishing to bar transgender females from participating in female sporting events.
Neither of the two developments changes any law at this time, but both represent powerful pushbacks against a wave of hostile legislation in many states.
The Supreme Court vote announced April 6 temporarily stops a recently passed ban in West Virginia against transgender athletes. The law is a variation on the numerous laws against transgender students that are being enacted around the country. The West Virginia law requires that public secondary schools and universities bar any student identified as male at birth from participating in a sport designated for female students.
The Supreme Court voted 7 to 2 in West Virginia v. BPJ to reject the state's request that the Supreme Court vacate a federal appeals court injunction in February that prevented the anti-transgender law from taking effect. The injunction is set to remain in place until the appeals court rules on the constitutionality of the law.
The Alliance Defending Freedom joined the state of West Virginia in its request to vacate the Fourth Circuit U.S. Court of Appeal's injunction. Twenty-one states joined a brief supporting West Virginia's request, including Florida, Georgia, Texas, and Virginia. And a group of 67 female athletes, coaches, and parents, including lesbian tennis legend Martina Navratilova, submitted a brief in support of the West Virginia law.
"At every level, we are aware that less skilled, less determined males beat higher level female athletes because of innate physical difference in the sexes," said the group's brief. "…When women and girls are asked to compete against male athletes, they are asked to ignore biological reality, the reality that defines female physical bodies."
Justices Clarence Thomas and Samuel Alito, the Supreme Court's most consistently anti-LGBTQ members, submitted a dissent to the majority's denial of West Virginia's request. They said the court is "likely" to take up the issue "in the near future." Specifically, they said, the issue will be whether Title IX of the Education Amendments of 1972 or the 14th Amendment's Equal Protection Clause prohibit a state law "restricting participation in women's or girls' sports based on genes or physiological or anatomical characteristics." The dissent also hinted that the majority's vote may have been based on a procedural matter: that West Virginia took 18 months before seeking to vacate the lower court injunctions.
The West Virginia law was due to go into effect in July 2021, but the ACLU and Lambda Legal filed litigation, BPJ v. West Virginia, to challenge the constitutionality of the law and prevent it from taking effect. (Subsequent to filing the lawsuit, the plaintiff in the challenge has been identified as now 12-year-old Becky Pepper-Jackson.)
Biden crafts a moderate proposal
The Biden administration's proposed rule change, from the U.S. Department of Education, cannot take effect until after a 30-day period during which the public can comment on the proposal and the Biden administration can take those comments into consideration.
The 115-page proposed rule change would amend one section of Title IX of the Education Amendments act, the federal law which prohibits discrimination "on the basis of sex" in schools that receive federal funding. The section (106.41b) says schools can have separate teams for males and females for contact sports. The Biden administration proposal seeks to add that, if a school refuses to allow a transgender student play on a team that matches their gender identity, the refusal must be based on a need to "minimize harms" and "be substantially related to the achievement of an important educational objective."
"This clarification regarding Title IX's application to sex-related eligibility criteria is particularly important as some States have adopted criteria that categorically limit transgender students' eligibility to participate on male or female athletic teams consistent with their gender identity," stated the Department of Education's Notice of Proposed Rulemaking (NPRM). DOE said it developed the proposal after getting feedback from stakeholders through a public hearing, listening sessions, and correspondence. It also stated that it referred to policies developed last year by the International Olympic Committee and the National Collegiate Athletics Association.
DOE referred to reports from these groups and others that indicate how, in schools, participation in sports serves various social, emotional, physical, and cognitive development," such as learning to work as a team.
"The Department finds the work of these organizations on this issue to be informative to the extent the organizations aim to balance important interests, minimize harm to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied, and take account of the sport, level of competition, and grade or education level of students," stated the DOE proposal.
"…Youth participation in athletics is associated with many physical, emotional, academic, and interpersonal benefits for students, including increased cognitive performance and creativity, improved educational and occupational skills, higher academic performance and likelihood of graduation from a 4-year college, improved mental health, and improved cardiovascular and muscle fitness, as well as reduced risk of cancer and diabetes, and has the potential to help students develop traits that benefit them in school and throughout life, including teamwork, discipline, resilience, leadership, confidence, social skills, and physical fitness," stated the DOE proposal.
At deadline, the proposed rule change had not yet been published in the Federal Register. Once it is, interested groups and individuals have 30 days to submit comments for DOE to consider before publishing a final rule change.
In related news, openly gay White House Press Secretary Katrine Jean-Pierre announced at her daily press briefing April 6 that the administration has also created a special helpline for transgender youth. With the National Suicide Prevention Lifeline, a transgender person can call 988 and then the number 3 to be connected to a counselor who has been specifically trained to help LGBTQ+ youth.
"This has been one of the worst weeks of 2023 so far in terms of anti-LGBTQ bills becoming law in states across America," noted Jean-Pierre. She explained that four states —Idaho, Indiana, Kansas, and North Dakota —enacted anti-LGBTQ bills this week. The Kansas law bans transgender kids from school sports. A total of 14 states currently ban health care professionals from providing gender-affirming care. "Look, this is awful news. Let's be very clear about that," said Jean-Pierre. "LGBTQI+ kids are resilient. They are fierce. They fight back. They're not going anywhere. And we have their back. This administration has their back."
In addition to the anti-trans state laws, national news has prominently featured details about a 28-year-old shooter in Nashville who gunned down three children and three adults March 27 at a private Christian school where the shooter was once a student. Police identified the shooter as Audrey Hale and transgender. Excerpts from Hale's texts indicated he preferred to be called Aidan Hale and use male pronouns. In a text to a friend shortly before the shooting, Hale indicated he planned to commit suicide.
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