Transgender participation in athletics hangs in the balance as the courts and legislatures debate the topic. Recently, House Republicans passed a bill called H.R.734 or the Protection of Women and Girls in Sports Act of 2023, a partisan bill that aims to ban the participation of transgender and intersex students in womens and girls athletics. U.S. Representative Greg Steube (R-Fla.) introduced this bill to solidify women's sports as a non-inclusive activity. President Joe Biden has promised to veto the bill in the unlikely event it passes through the Democrat-controlled Senate, but this latest bill is not alone–there are over a dozen states that have enacted laws prohibiting the inclusion of transgender athletes in sports since 2020. 

The Legal Landscape

The policy landscape surrounding H.R. 734 and trans inclusion in sports more broadly is a bit of a mixed bag. Although many states are taking actions against trans inclusion, other legal authorities are ruling otherwise. For instance, earlier this month, the Supreme Court ruled against the state of West Virginia for their law banning transgender women and girls from participating in athletics based on their gender identity. A lower federal court recently ordered the state to temporarily stop the ban against Becky Pepper-Jackson, a 12-year-old transgender girl who sued the state over the law passed. The American Civil Liberties Union sued on behalf of Becky Pepper Jackson, who sought to participate on the girls cross country team at her school. Pepper-Jackson's attorneys wrote that she “has known she's a girl as long as she can remember” and gets puberty-delaying treatment and estrogen hormone treatment so she won't experience endogenous puberty.

 Justice Alto wrote this in his dissent from denial of application to vacate injunction: “This application concerns an important issue that this Court is likely to be required to address in the near future, namely, whether either Title IX of the Education Amendments of 1972…or the Fourteenth Amendment's Equal Protection Clause prohibits a State from restricting participation in women's or girls' sports based on genes or physiological or anatomical characteristics.” 

Related: More Funding and More Opportunities: The Benefits of Title IX for College Athletes

The Department of Education released a notice of proposed rulemaking (NPRM) on athletic eligibility on April 6, 2023, the same day as the Supreme Court ruling. The rule seeks to provide clarity to students, parents, and coaches about how and when transgender students can take part in school sports, particularly with the adoption of new regulations and policies by certain states targeting transgender students. The language used in the new NPRM protects transgender athletes from blanket bans such as the one in West Virginia and reads in part that “the proposed rule would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity just because of who they are.” This NPRM will be published in the Federal Register and go through a 30-day public comment period before it is final. Almost all state blanket bans, like West Virginia's, will no longer be tolerated under Title IX legislation rule change. However, this language is restrained by the Department of Education by setting forward a sex-related sports participation criteria.

The DOE's approach allows schools the flexibility to create team eligibility criteria and the proposed regulation understands that variations between school years, the degree of competition, and sport needs to be taken into consideration for any eligibility requirements that might prevent transgender students from taking part in teams in line with their gender identity. This proposed rule will likely protect students like Becky Pepper Jackson, the 12-year-old West Virginian who sued to be able to run cross country, but many of the implications remain to be seen.

Sports Participation Matters

Young children and teenagers deserve the right to play sports. Numerous studies have shown that the inclusion of all children is important for development, regardless of gender identity. Not only should transgender students be allowed in sports, but athletics may also help trans youth because they are particularly at risk for isolationism. In an opinion piece published in JAMA Pediatrics, the authors write that “exercise impacts mental health, leading to a decrease in depressive symptoms, with team sports participation specifically associated with lower rates of loneliness and social anxiety, effects that are more pronounced for those at greater psychological risk.” Additionally, “transgender youth are particularly vulnerable to mental and physical comorbidities that are mitigated by physical activity.” Restricting athletic participation for transgender students misses the point of youth sports and denies youth trans athletes the myriad of benefits that come with sports participation.

Related: So, You're a Mentally Ill Athlete: 5 Ways to Cope When Your Brain Won't Cooperate With You 

The College Sports Landscape

Outside of youth sports, the main topic of debate when it comes to transgender athletes in athletics is not whether transgender athletes should be allowed to compete, but rather, who they should compete against. The NCAA now takes a sport-by-sport approach to transgender participation that preserves opportunity for transgender student-athletes while balancing fairness,  inclusion, and safety. Much like the Olympics, the revised NCAA policy requires transgender participation for each sport to be based on the policy for the national governing body of that sport, subject to constant review and recommendation by the NCAA Committee on Medical Aspects and Competitive Safeguards of Sports to the Board of Governors. In the event that no policy for a sport is followed, then the global association policy for the sport will be followed and in the event there exists no international federation policy, the earlier determined IOC policy criteria will be followed.

The full implementation of this plan will start in the 2024-2025 school year and the plan's participation requirements for trans athletes reads in part: “Beginning Aug. 1, 2024, participation in NCAA sports requires transgender student-athletes to provide documentation no less than twice annually (and at least once within four weeks of competition in NCAA championships) that meets the sport-specific standard (which may include testosterone levels, mitigation timelines and other aspects of sport-governing body policies) as reviewed and approved by CSMAS.”  In short, this means that  depending on the sport, there might be ways transgender athletes can participate collegiately if they meet the appropriate participation requirements. Additionally, the recent NPRM by the Department of Education defers to the NCAA to make good judgements in regulating fairness.

The final ruling of the NPRM will be decided shortly, where it will likely be debated in the Supreme Court. The NPRM is designed to support Title IX's protection of equal sporting opportunities while making sure that schools provide sex-segregated sports teams in specific circumstances. The DOJ's final rule will provide much needed clarity on how and when transgender students are able to take part in school sports as well as give them equal athletic opportunities. The Department welcomes and encourages public feedback on the proposed rule and will keep working hard to make sure Title IX protection applies to all students.

Have an idea for a story or a question you need answered? Want to set up an interview with us? Email us at [email protected]

* Originally published on May 17, 2023, by Ryan Wiley