Just a week after Democratic Hawaii Rep. and former 2020 Presidential candidate Tulsi Gabbard introduced a bill into the U.S. House of Representatives that would dictate Title IX protections for female athletes be based on biological sex—a term often used to refer to gender assigned to a person at birth. Hawaii Attorney General Clare E. Connors and New York Attorney General Letiti a James co-led a coalition of 22 Attorneys General supporting transgender women and girls participating in women’s sports.
Title IX prohibits discrimination on the basis of sex in any educational program or activity that receives federal funding, and is well known for its requirement that women’s sports programming receive equal support to men’s programming.
Gabbard is in the final days of her Congressional term, introduced the bill, titled the “Protect Women’s Sports Act,” with Republican Oklahoma Rep. Markwayne Mullin. Republican Georgia Sen. Kelly Loeffler introduced a similar bill, titled “the Protection of Women and Girls in Sports Act,” into the Senate in September. (Loeffler’s bill has not been taken up for a vote.)
“Title IX is being weakened by some states who are misinterpreting [it], creating uncertainty, undue hardship and lost opportunities for female athletes,” Rep. Gabbard said in a statement. “Our legislation protects Title IX’s original intent which was based on the general biological distinction between men and women athletes based on sex.”
“Title IX was designed to give women and girls an equal chance to succeed, including in sports,” said Rep. Mullin in a statement of his own. “Allowing biological males to compete in women’s sports diminishes that equality and takes away from the original intent of Title IX.”
If implemented into law, the bill would deny federal funding to schools that “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.” It was immediately decried by LGBTQ+ advocates
A number of state legislatures have tried to pass legislation over the past year aimed at prohibiting trans women and girls from participating in female sports teams. Idaho Gov. Brad Little signed the “Fairness in Women’s Sports Act” into law in March, which said no female sports teams could be open to “students of the male sex” and a “dispute” could be resolved by presenting a signed physician’s statement on the student’s sex based on their “internal and external reproductive anatomy.” A federal judge struck down the law in March, writing that the state had not provided a “legitimate interest” the Act served “other than an invalid interest of excluding transgender women and girls from women’s sports entirely, regardless of their physiological characteristics.”
In an amicus brief filed in the United States Court of Appeals for the Ninth Circuit, the Conners coalition supports the plaintiffs-appellees’ challenge to an Idaho law that categorically bars transgender women and girls from participating in sports consistent with their gender identity and provides that any female student athlete may be subject to an intrusive sex verification process. The brief argues that the law fails to advance any legitimate governmental interest and serves only to stigmatize and exclude an already vulnerable population.
“Despite its title, Idaho’s ‘Fairness in Women’s Sports Act’ categorically excludes transgender women and girls from participating in women’s sports, unlike every other state in the union,” said Attorney General Connors. “ The law is discriminatory and unconstitutional.”
According to Conner’s in many of the amici States, transgender students are ensured nondiscriminatory treatment in school activities and permitted to participate in sports consistent with their gender identity. As the amicus brief demonstrates, the experience of the amici states in administering inclusive policies contradicts the assumption underlying Idaho’s law—that allowing transgender women and girls to participate in women’s sports compromises opportunities for cisgender students.
Joining Attorneys General James and Connors in the amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.
A copy of the amicus brief can be found here.
