LITTLE ROCK, Arkansas (AP) — The Biden administration has put on hold a plan to ban transgender athletes from school teams across the board in an election year when Republicans are pushing for restrictions on transgender youth. But Republican leaders are making sure voters know the issue is still on the table.
At least two dozen Republican-controlled states have filed suit against another federal regulation created to protect the rights of transgender students, saying it would require governments to allow transgender girls to play on girls’ teams.
The rule they are challenging does not specifically mention transgender athletes, but states that Title IX, the landmark 1972 law that originally regulated women’s rights in federally funded schools and colleges, also prohibits discrimination based on sexual orientation and gender identity.
Republicans are now trying to shift the focus to sports by appealing to parents’ and athletes’ sensitivities about fairness in competition. They have enlisted student-athletes as plaintiffs and are appearing alongside state attorneys general at press conferences announcing the lawsuits.
The states argue that the modern rule would allow schools to allow transgender athletes to compete on teams that match their gender identity, even if the rule does not explicitly say so. They may be right.
The modern rule “makes it very clear: ‘There can be no rule that says transgender people can’t participate,'” says Harper Seldin, an attorney with the American Civil Liberties Union, which has represented transgender athletes in other cases.
He said while he hoped this would be supported by separate sports-related regulations, this was not yet clear.
Advocates for transgender athletes say the GOP officials’ claims are based more on politics than reality and are aimed at undermining lawsuits against state restrictions on transgender athletes.
“It’s puzzling that these people are talking about challenging a rule that doesn’t do what they claim to be challenging,” said Cathryn Oakley, senior director of legal policy at the Human Rights Campaign, a leading LGBTQ+ advocacy group. “It’s pretty hard to understand how they can expect to be taken seriously when they don’t seem to know what the substance of the rule they’re challenging is.”
And many transgender youth and their families feel the restrictions unfairly portray transgender athletes as a risk. Erik Cole-Johnson, a New Hampshire father who opposed a proposed ban, said his daughter has been able to thrive by participating in cross-country and cross-country skiing competitions.
“My daughter is not a bogeyman; my daughter is not a threat,” Cole-Johnson told a state Senate committee in April that was considering the bill, which is now on the desk of Republican Gov. Chris Sununu. “Transgender girls are not a threat.”
New Hampshire is not among the states challenging the rule. The Republicans’ lawsuits have been filed in several federal appeals courts in the hope that one of them will stop the modern rule before it takes effect in August. Several states, including Arkansas and Oklahoma, have also said they do not plan to comply with the rule.
The White House had originally planned to introduce a modern policy prohibiting schools from outright banning transgender athletes from sports, but that was put on hold in what was widely seen as a political move to avoid controversy ahead of the fall election. The Education Department said it received more than 150,000 public comments on the sports policy, but did not provide a timeline for the policy’s release.
A lawsuit filed by Kansas Attorney General Kris Kobach alleges that the lack of sports guidance in the modern law is a “red herring” because the department’s basic assumption is that Title IX does not allow discrimination based on sex.
Many states that oppose the rule have also passed laws that impose restrictions on transgender athletes, including restrictions on the employ of restrooms and locker rooms and the forms of address they can be used in school. These laws could also be repealed by the rules.
“I don’t want any girl to lose her right to a fair playing field or a safe locker room,” said Amelia Ford, a high school basketball player from Brookland, Arkansas, who is a plaintiff in a Missouri federal court case challenging the rule.
In the debate over whether transgender people should be allowed to compete in sports consistent with their gender identity, both sides point to narrow research to support their views on whether trans women and girls have an advantage over cisgender women and girls.
Given the relatively compact number of transgender people—about 2.74% of all 13- to 24-year-olds nationwide, according to estimates from the Williams Institute at UCLA Law University—and the even smaller number of those who compete, disputes over fairness in school sports do not seem widespread. Many lawmakers who have advocated for sports bans have not cited examples from their own states, but have pointed to a handful of high-profile cases elsewhere, such as that of swimmer Lia Thomas.
When Arkansas Governor Sarah Huckabee Sanders signed an executive order refusing to comply with the latest Title IX regulations, former Kentucky swimmer Riley Gaines joined her in suing the NCAA for allowing Thomas to compete in the 2022 national championships.
The lawsuits also come as Republican states try to get the U.S. Supreme Court to address their restrictions on transgender athletes. West Virginia has appealed a ruling that allowed a transgender athlete to compete on her school’s middle school teams. The 4th U.S. Circuit Court of Appeals’ ruling last month found that the ban violated the student’s Title IX rights.
“Many of these cases are premature and certainly just try to undermine the basic premise that transgender students are protected under Title IX and try to maintain the exemptions we’ve seen with respect to sports in states across the country,” said Paul Castillo, an attorney with Lambda Legal.
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Associated Press writers Geoff Mulvihill in New Jersey and Seung Min Kim in Washington, D.C., contributed to this report.
