Federal rule on Title IX is a ruse to require trans sports participation, GOP states say

LITTLE ROCK, Ark. — The Biden administration has shelved a plan to impose a blanket ban on transgender athletes on school teams during an election year when Republicans are backing restrictions on trans youth. But state Republican Party leaders are making sure voters know the issue is still on the table.

At least 20 Republican-controlled states have filed a lawsuit over another federal regulation implemented to protect the rights of transgender students that they say would require governments to allow transgender girls to play on girls’ teams.

The rule they are challenging does not specifically mention transgender athletes. It explains that Title IX, the landmark 1972 law originally passed to address women’s rights in schools and colleges that receive federal money, also prohibits discrimination on the basis of sexual orientation and gender identity.

Republicans are now trying to keep the focus on sports, appealing to the sensitivities of parents and athletes about fairness in competition. There are student athletes who sign on as plaintiffs and appear alongside the attorneys general at press conferences announcing the lawsuits.

The states argue that the new rule would open the door to forcing schools to allow transgender athletes to compete on teams that match their gender identity, even if the rule does not specifically say so. They may have a point.

The new regulation “makes a pretty good sense that says, ‘You can’t have a rule that says if you’re transgender, you can’t compete,’” said Harper Seldin, an attorney for the American Civil Liberties Union who has represented trans athletes in unrelated matters.

He said that while he hopes separate sports-related regulations will support this, that is not yet clear.

Advocates for transgender athletes say GOP officials’ claims are more rooted in politics than reality and more aimed at undermining lawsuits against state restrictions on transgender athletes.

“It’s mind-boggling that these people are talking about challenging a rule that doesn’t do what they say and object to,” said Cathryn Oakley, senior director of legal policy at the Human Rights Campaign, a leading LGBTQ+ advocacy group. . “It is quite difficult to imagine how they can expect to be taken seriously if they do not know the content of the rule they are challenging.”

And many transgender youth and their families say restrictions wrongly portray trans athletes as a risk. Erik Cole-Johnson, a New Hampshire father who spoke out against a proposed ban, said the opportunity to compete in cross-country and cross-country skiing has helped his daughter thrive.

“My daughter is not an ogre; My daughter is not a threat,” Cole-Johnson told a Senate panel in April as they heard the bill, which is now on Republican Gov. Chris Sununu’s desk. “Transgender girls are not a threat.”

New Hampshire is not among the states challenging the rule. The GOP challenges have been filed in several federal circuit courts in hopes of halting the new rule before it takes effect in August. Several states, including Arkansas and Oklahoma, have also said they do not plan to comply.

The White House originally planned to implement a new policy that would prohibit schools from issuing an outright ban on transgender athletes, but that was shelved in what was widely seen as a political move to avoid controversy before the fall elections. The Department of Education said it has received more than 150,000 public comments on the athletics policy, but did not provide a timeline for the rule’s release.

A lawsuit filed by Kansas Attorney General Kris Kobach said the lack of athletics guidance in the rule that goes into effect instead is a “red herring” given the department’s default position that Title IX does not allow discrimination on the grounds of sex.

Many states challenging the rule have also passed laws imposing restrictions on transgender athletes, as well as the restrooms and locker rooms they can use or pronouns they can be addressed by at school, policies that could also be nullified by the regulations.

“I don’t want any girl to lose her right to a fair playing field, or her right to use a safe place to change,” said Amelia Ford, a high school basketball player from Brookland, Arkansas, that plaintiff is in a lawsuit. filed in federal court in Missouri, challenging the established rule.

In the discussion about transgender people competing in sports in accordance with their gender identity, both sides point to limited research supporting their positions on whether trans women and girls have an advantage over cisgender women and girls.

By some accounts, given the relatively small population of transgender people — about 2.74% of all people between the ages of 13 and 24 nationwide, according to estimates from UCLA Law’s Williams Institute — and the even lower number of those who participate, there are disputes about fairness in school sports. do not appear to be widespread. Many lawmakers who have pushed for sports bans have not cited examples from their own states, but pointed to a handful of high-profile cases elsewhere, such as swimmer Lia Thomas.

When Arkansas Governor Sarah Huckabee Sanders signed an executive order refusing to comply with the latest Title IX regulations, she was joined by former Kentucky swimmer Riley Gaines, who was one of more than a dozen college athletes who sued the NCAA for allowing Thomas to compete in the 2022 national championships.

The lawsuits also come as GOP states try to get the U.S. Supreme Court to weigh in on their restrictions on transgender athletes. West Virginia is appealing a ruling that allowed a transgender athlete to compete on its high school teams. Last month’s 4th U.S. Circuit Court of Appeals ruling found that the ban violates students’ rights under Title IX.

“Many of these cases are premature and certainly only seek to undermine the basic idea that trans students are protected under Title IX and seek to continue the exclusions we have seen in states across the country regarding athletics,” said Paul Castillo, a lawyer at 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.