By: Sarah Johnson
This week we’ll take a closer look at a bill we saw a flood of traffic to last week, US HR426, or the Protection of Women and Girls in Sports Act of 2021. Proposed on the 21st of January, 2021, this bill aims to “provide that for purposes of determining compliance with title IX of the Education Amendments of 1972 in athletics, sex shall be recognized based solely on a person’s reproductive biology and genetics at birth.” US HR436 is the latest in a legislative trend we have seen over the last couple years – states looking to pass legislation to govern who can participate in sports.
Why are States Proposing Legislation to Govern who Can Participate in Sports?
The general goal of the proposed legislation is to keep transgender female athletes from belonging to school sports teams (from elementary through college) that do not match their gender assigned at birth. In 2020, lawmakers introduced 20 bills seeking to ban transgender people from participating in athletics according to the ACLU. From what we have seen so far in the 2021 session, this year will be no different.
Most of the bills are similar to legislation passed in Idaho in March of 2020. Idaho was the first state to pass legislation banning transgender student athletes from women’s sports teams, but their law has been temporarily blocked due to a challenge (Hecox v. Little) in federal court by the ACLU. Before the bill’s passage last year, Idaho had one of the most restrictive policies regulating participation of transgender athletes in high school athletics in the nation. Their policy, replaced by HB500’s outright ban from participation, required girls who are transgender to complete one year of hormone therapy as part of gender transition before competing on girls’ sports teams. In Connecticut, there is also a suit (Soule v. Connecticut Association of Schools, Inc.) over a state policy which allows students to play on teams matching their gender identity. The group leading the suit, Alliance Defending Freedom, had the backing of DeVos’ Education Department and says,
Ever since the Connecticut Interscholastic Athletic Conference adopted a policy that allows males who identify as female to compete in girls’ athletic events, boys have consistently deprived Selina Soule, Alanna Smith, Chelsea Mitchell, and Ashley Nicoletti of honors and opportunities to compete at elite levels. CIAC’s policy is at odds with Title IX, a federal law designed to create equal opportunities for women in education and athletics.
What does Title IX Say Again?
In 1972, Title IX was enacted as part of a federal civil rights law passed with the Education Amendments. The law protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance. Title IX states that:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
The state and local educational agencies included in Title IX are approximately 16,500 local school districts, 7,000 postsecondary institutions, charter schools, for-profit schools, libraries, and museums.
What happened with the Trump Administration and Title IX?
At the beginning of this year, the Trump Department of Education Office of Civil Rights released a statement that LGBTQ+ students are not included in the entire protections of Title IX. This is contradictory to what many believe was precedent set by the US Supreme Court last year in Bostock v. Clayton County where the Court ruled that the rights of Title VII of the Civil Rights Act of 1964, extended rights to LGBTQ+ workers to protect them against any form of employment discrimination. Associate Justice Neil Gorsuch had this to say about the ruling
The answer is clear, an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids.
One of Biden’s first actions after being inaugurated was to sign the “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation”. The order specifically calls for a broader application of Bostock v. Clayton County – saying that this case about transgender rights applies to Title IX. The order states: “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. It is the policy of my administration to prevent and combat discrimination on the basis of gender identity or sexual orientation.”
Has Similar Legislation has been Proposed at the State Level?
There have been many different bills proposed across the country aimed at blocking schools from allowing trans students to participate in sports. As we already mentioned, Idaho was able able to pass HB500. Many other similar bills have been proposed in states like Kentucky, Mississippi, New Hampshire, North Dakota, Oklahoma, South Carolina, and Tennessee. In Montana, their HB112 crossed over the last week of January and is expected to pass. Texas HB1458 was proposed at the end of January and would ban transgender girls and women who attend public K-12 schools, colleges and universities from playing on single-sex sports teams designated for girls and women.
Then, on a federal level, the Protect Women’s Sports Act was introduced at the end of last year by former Rep. Tulsi Gabbard and Rep. Markwayne Mullin. The legislation, like the others, seeks to limit women’s collegiate sports programs to only people assigned female gender at birth. Mullin had this to say in a statement, “Title IX was designed to give women and girls an equal chance to succeed, including in sports. Allowing biological males to compete in women’s sports diminishes that equality and takes away from the original intent of Title IX.” Schools that don’t comply with the law would lose access to federal funding.
What does US HR426 Say?
HR426 states: “It shall be a violation of subsection for a recipient of Federal funds who operates, sponsors, or facilitates athletic programs or activities to permit a person whose sex is male to participate in an athletic program or activity that is designated for women or girls.” What makes this bill different from the others, it is a Congressional bill, not a state bill. If passed, this would impact sports programs all over the United States. This bill was also proposed last year, in 2020, where it was referred to the House Committee on Education and Labor the day it was introduced and died there.
The legislation would prohibit schools from receiving federal funding if they permit “a person whose biological sex at birth is male to participate in an athletic program or activity that is designated for women or girls”, aka, imposing Title IX using “biological” sex to guide who has the protections afforded to them by Title IX. Last year, there were many concerns about how exactly people would have to have their “reproductive biology” checked. The bill offered no explanation as to how this would be determined and does not rule out invasive actions like screening and exams.
Before losing the runoff election to Rev. Raphael Warnock this January, Kelly Loeffler introduced a companion bill to the 2020 version of the Protection of Women and Girls in Sports Act of 2020. Loeffler had this to say about the legislation
Title IX established a fair and equal chance for women and girls to compete, and sports should be no exception. As someone who learned invaluable life lessons and built confidence playing sports throughout my life, I’m proud to lead this legislation to ensure girls of all ages can enjoy those same opportunities. This commonsense bill protects women and girls by safeguarding fairness and leveling the athletic field that Title IX guarantees.
Conclusion
I believe this policy movement is misinformed and another attempt to push transgender and nonbinary people out of public spaces. As a serious scholastic athlete myself, I know that my participation in sports was not only a great outlet in a small town, but helped me forge amazing friendships, build self-esteem, understand the value of teamwork, and give me a true sense of belonging. All people deserve the opportunity to have this experience should they so choose.
As Juniper Eastwood, a transgender woman who ran track and field as well as cross country for the University of Montana said, “Participation in sports is about more than winning and losing. It’s about community and personal development.”
Another huge issue I have with this trend is how legislation like this invites “gender policing”. It is hard enough to grow up in our society. Introducing a dynamic allowing people to throw accusations at people deemed “too good” or “too masculine” is not acceptable. The repercussions of these bills, like invasive tests and screening, is not trauma we need to be putting people through, especially not some of our most vulnerable kids. The thought of my 15 year old self having to be subjected to an invasive action like checking what my reproductive organs are to prove whether or not I am a “real” woman is humiliating. Transgender people are who they say they are. Transgender girls are girls. Our transgender youth deserve the same opportunities as all youth and legislation that continues to “other” them out of inaccurate and wrong beliefs is wrong.
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