Across the country, Republican state legislators have introduced bills that would enshrine discrimination against trans student athletes. But the bills have an even larger goal and impact: telling trans people, and in particular trans kids, that they don’t belong. Last year, a similar push was made for bills that would bar medical professionals from giving gender-affirming care like hormones and puberty blockers to minors. One such bill, which included prison time for providers who gave gender-affirming care, passed the Alabama Senate last month.
At least 25 state legislatures are considering bills that would restrict trans youth participation in sports. Mississippi’s governor signed one of those bills into law last week and South Dakota’s governor is poised to sign another that has reached her desk. It’s the result of a coordinated push from shadowy conservative groups, including the Alliance Defending Freedom, which the Southern Poverty Law Center has labeled a hate group.
The bills differ in enforcement, their definitions of gender and sex (and their means of “verification”), and whose participation is directly targeted by the restrictions. A Minnesota bill would make a trans girl’s participation on a girls’ team a petty misdemeanor. Many of the bills, like Arkansas’s, create a private right of action for cisgender students competing against trans students who violate the prohibition and insulate schools and school districts that enforce the discriminatory policies from liability. Many of the bills require that teams that are not coed be determined by “biological sex” but only enumerate that “students of the male sex . . . be ineligible to participate in athletic teams or sports designated for females, women, or girls.” Some of the bills define sex on the basis of “the individual’s original birth certificate issued at the time of birth” while others offer no definition. A 2020 Idaho bill required a student whose participation was challenged to have a doctor “verify” their sex using “reproductive anatomy, genetic makeup, or endogenous testosterone, i.e. the level of testosterone the body produces without medical intervention.” As the ACLU has noted, this would sanction the harassment, outing, and invasive physical examination of trans and cis students alike.
However, last year the ACLU successfully argued that Idaho’s bill violated the Equal Protection Clause of the Constitution and won an injunction against that legislation, succeeding before a Trump appointee. Citing Bostock, the judge found that a heightened level of scrutiny was appropriate. While the decision is on appeal, the district court victory shows a path forward for advocates seeking to challenge this hateful wave of legislation.
It’s a challenge that is already occurring across the country, both inside the courtroom and out. Last month, the Biden Administration withdrew a letter issued by the Trump Administration’s Department of Education’s Office of Civil Rights that interpreted Title IX to exclude trans girls and women from participating on girls’ and women’s teams. The Trump Administration had issued the guidance in response to a Connecticut lawsuit challenging the state’s policy of allowing students to compete in accordance with their gender identity. Last week, over 500 college athletes called on the NCAA to stop holding events in states that passed or are considering passing legislation that excludes trans athletes. The demand was not without precedent: following the passage of North Carolina’s discriminatory “bathroom bill” in 2016, the NCAA refused to hold events there and created a new nondiscrimination policy.
If history is any guide, defeating these transphobic policies will require a strong fight on all fronts.