Who's on the team: A guide to the latest federal actions about transgender athletes

Credit: Riley McCullough/Unsplash

Credit: Riley McCullough/Unsplash

Carolyn Jones

April 18, 2023

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Rights and protections for transgender students are constantly evolving, as the culture wars play out and politicians, lawyers, families and students themselves grapple with what it means to be transgender in different contexts, particularly sports.

Recently, two federal actions brought some clarity to policies and laws related to the right of transgender students to play on sports teams that align with their gender identity. The decisions, by the U.S. Department of Education and the U.S. Supreme Court, are not the final word on trans athletes, but they are important milestones in the debate.

Here’s a guide to those decisions and where the law stands now for young people who want to play on the single-sex teams that they believe match their gender identity, rather than the team that matches the sex they were at birth.

What do the new U.S. Department of Education guidelines say?

The new guidelines, issued April 6, state that schools, colleges and universities cannot bar students from a sports team simply because they’re transgender. But the guidelines also give schools the flexibility to prevent athletes from playing on a team that matches their gender identity in certain competitive situations or where there is a risk of injury. For example, a transgender athlete who was born as a male but identifies as a woman may be blocked from joining a woman’s team in some cases.

“Schools would not be permitted to adopt or apply a one-size-fits-all policy that categorically bans transgender students from participating on teams consistent with their gender identity,” the guidelines state. “Instead, the Department’s approach would allow schools flexibility to develop team eligibility criteria that serve important educational objectives, such as ensuring fairness in competition or preventing sports-related injury. These criteria would have to account for the sport, level of competition, and grade or education level to which they apply.”

The guidelines are an update to Title IX, the 1972 law banning sex discrimination in schools or other programs that receive federal funding.

What happens if a school violates the order?

Schools that violate Title IX risk losing federal funding.

What was the Supreme Court ruling?

The Supreme Court ruled on April 6 that a 12-year-old transgender girl in West Virginia can participate in her middle school’s girls’ cross-country and track teams, at least for now.

The case stems from a 2021 West Virginia law that prevents boys from competing on girls’ sports teams. Lawyers representing the girl, identified as Becky Pepper-Jackson, sued the state, saying the law discriminates against transgender girls. A federal judge ruled against her, saying that athletes who were born male do have an advantage when competing against girls.

The girl’s lawyers appealed that ruling, and a federal appeals court agreed that the girl could continue to play while the case moved forward. The Supreme Court upheld that order.

The ACLU cheered the ruling.

“We are grateful that the Supreme Court today acknowledged that there was no emergency and that Becky should be allowed to continue to participate with her teammates on her middle school track team, which she has been doing without incident for three going on four seasons, as our challenge to West Virginia’s onerous trans youth sports ban makes its way through the courts,” the organization said. “This was a baseless and cruel effort to keep Becky from where she belongs — playing alongside her peers as a teammate and as a friend.”

Justices Clarence Thomas and Samuel Alito dissented. West Virginia Attorney General Patrick Morrissey said he was “deeply disappointed” in the court’s decision.

What do these federal actions mean for transgender athletes?

Both are at least partial victories for trans athletes, providing clarity on a much-debated issue that’s been at the center of the culture wars. The rulings are especially meaningful for transgender athletes in elementary and middle school, where sports teams are rarely competitive, and for transgender athletes in states that previously barred their participation on teams that align with their gender identity.

“It should go without saying, policies that fully include trans women and girls on sports teams with other women and girls harm no one,” according to a statement signed by eight LGBTQ organizations.

“Nobody should be denied the opportunity to be part of a team just because of who they are,” said Kasey Suffredini, vice president of advocacy and government affairs for the Trevor Project, a nonprofit that advocates for LGBTQ young people.

Where does California stand on this issue?

At least 20 states have laws that prevent transgender students from playing on teams that align with their gender identity, but California isn’t one of them. California schools already allow transgender students to play on the sports teams that they choose. Assembly Bill 1266, passed in 2013, requires schools to allow students to participate in any school program, including sports, and use any facilities, including bathrooms and locker rooms, that match their gender identity.

The California Interscholastic Federation, which governs high school sports in the state, affirms this in its bylaws and in a gender diversity toolkit, providing guidance for coaches, teachers, students and families.

“Transgender students are entitled to and must be provided the same opportunities as all other students to participate in physical education and sports consistent with their gender identity,” the state Department of Education states.

Even though California’s guidelines go further than the proposed change to Title IX, the state would not have to roll back its protections to be in compliance.

What about college sports?

The guidelines for college sports are more complicated and vary by sport. The National Collegiate Athletic Association recently aligned its policy to match the International Olympic Committee’s, which requires transgender athletes to submit testosterone documentation before competing. The standards are determined by the governing bodies overseeing each sport. The U.S. Tennis Association, for example, states that male-to-female transgender athletes can compete on women’s teams if “hormonal therapy appropriate for the assigned sex has been administered in a verifiable manner and for a sufficient length of time to minimize gender-related advantages in sport competitions.” Someone who tests with too much testosterone, for example, might not be allowed to play in female competition, regardless of gender identity, in some cases.

“We are steadfast in our support of transgender student-athletes and the fostering of fairness across college sports,” said John DeGioia, former chair of the board of the NCAA Division I Committee on Academics and current Georgetown University president. “It is important that NCAA member schools, conferences and college athletes compete in an inclusive, fair, safe and respectful environment and can move forward with a clear understanding of the new policy.”

These guidelines apply to community colleges and most public and private colleges and universities.

Who is considered transgender?

“Transgender is a general term that refers to a person whose gender identity differs from the sex they were assigned at birth, such as someone who identifies as male but whose sex on their original birth certificate was marked female,” according to the California Civil Rights Department.

Is this the end of the debate? What are the next steps?

It’s likely not the end of the debate, especially in states with more restrictive policies. The proposed change from the Biden administration offers schools some flexibility in competitive situations, which is likely where the next disagreements will arise. It’s also unclear what “competitive” means at the high school level, which could potentially lead to further court rulings and federal decisions in the future.

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