In a reverse of previous guidance, the Department of Education (DOE) announced in June 2021 that transgender and gay students are protected at school by Title IX. In the Notice of Interpretation, DOE said that it would enforce the prohibition on discrimination based on sexual orientation and gender identity.
This new guidance came on the heels of several states banning transgender athletes from participating in sports. Since 2020, 11 states have enacted similar laws that limit female athletes to those born female and have prompted several lawsuits. Attorneys and others following Title IX expect this subject to be addressed in the new rules slated to be announced sometime in spring 2022. The new rules will directly affect Title IX defense.
Title IX, created under the Education Amendments of 1972, prohibits sex-based discrimination in all schools or educational institutions that receive federal funding.
DOJ Sides with Transgender Athletes
In a possible foreshadowing of what’s to come, the Department of Justice (DOJ) sided with an 11-year-old West Virginia transgender girl who wants to compete on the middle school girls’ cross-country team. Their support came one day after DOE announced its interpretation regarding transgender students.
The DOJ stated, “A state law that limits or denies a particular class of people’s ability to participate in public, federally funded educational programs and activities solely because their gender identity does not match their sex assigned at birth violates both Title IX and the Equal Protection Clause.”
The department filed statements of interest in lawsuits in West Virginia and Arkansas. Earlier in 2021, the DOJ and DOE withdrew their support of a federal lawsuit brought by cisgender athletes in Connecticut. The lawsuit was later dismissed.
Growing List of States Barring Transgender Athletes
Most states have left athlete participation decisions to state or local athletic associations. One state, California, has had a law since 2013 that requires public schools to allow transgender students to access bathrooms and sports teams according to their gender identity. On the flip side, an increasing number of states are passing laws that require athletes to participate according to their gender at birth.
Those who support transgender-inclusive policies say that such policies have positive psychological and physical impacts on transgender youth. Detractors say that allowing transgender athletes, particularly transgender girls, is fundamentally unfair to the other athletes.
According to a 2021 Gallup poll, 62% of Americans believe trans athletes should only play on sports teams that align with their birth gender.
States that currently limit sports participation to gender at birth include the following:
- Alabama: HB 391 was passed on April 23, 2021. The law bars athletes assigned male at birth from participating in a girls’ sport. Likewise, those assigned as girls at birth cannot play in a boys’ sport unless there is no comparable opportunity.
- Arkansas: SB 354 was signed into law in March 2021. The law bans transgender girls and women to participate in female sports. The law went into effect in an override of the governor’s veto.
- Florida: On June 1, 2021, SB 1028 was signed into law. Someone born female may participate in boys’ athletic programs, but those born male cannot participate in girls’ programs.
- Idaho: The Gem State became the first state to restrict transgender students’ access to sports. HB 500 was passed in March 2020. A preliminary injunction was granted to block the bill from going into effect, but the state activities association has a policy that mirrors its language.
- Iowa: House File 2416, which prohibits transgender girls and women from participating in female athletic programs, was signed into law on March 3, 2022.
- Mississippi: In March 2021, the governor signed SB 2536 into law. Students assigned as male at birth cannot participate in girls’ sports.
- Montana: HB 112, signed into law in May 2021, states that students assigned male at birth cannot participate in girls’ sports.
- South Dakota: Transgender girls cannot play in school sports that match their gender identity, according to SB 46, which was signed into law on Feb. 3, 2022.
- Tennessee: The gender identified at birth is used to determine what sports they can play in middle and high school. The law went into effect in May 2021.
- Texas: HB 25 was signed by the Texas governor on Oct. 25, 2021. Student-athletes can only play interscholastic sports that match their gender assigned on their official birth certificate. Girls can play on a boys’ team if there is no corresponding girls’ sport available.
- West Virginia: HB 3293 bans students assigned as male at birth from participating in girls’ sports. The governor signed the law in April 2021.
Many states have recently introduced or filed transgender bills that failed to pass:
- Alaska (2021)
- Arizona (2021)
- Connecticut (2021)
- Georgia (2021)
- Hawaii (2021)
- Illinois (2021)
- Indiana (2022; Gov. Eric Holcomb vetoed the bill)
- Kansas (2021; Gov. Laura Kelly vetoed the bill)
- Kentucky (2021)
- Louisiana (2021; Gov. John Bel Edwards vetoed the bill)
- Maine (2021)
- Michigan (2021)
- Minnesota (2021)
- Missouri (2021)
- New Hampshire (2021)
- New Jersey (2021)
- New Mexico (2021)
- North Carolina (2021)
- North Dakota (2021; Gov. Doug Burgum vetoed the bill)
- Ohio (2021)
- Oklahoma (2021, 2022)
- Pennsylvania (2021)
- Rhode Island (2021)
- South Carolina (2021)
- Utah (2021)
- Washington (2021)
- Wisconsin (2021)
Contact us if you have questions about Title IX guidance. We offer strong support for anyone facing a Title IX violation. Schedule a consultation by calling (737) 200-2332.