Trans Participation and the Burden of Marginalized Groups

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Earlier this year, LGBTQ+ students and victims of campus sexual assault gained new protections under the Biden-Harris Administration’s finalized revision of Title IX regulations.

The rules – released April 2024 after being announced in 2022 – represented a landmark effort to solidify discrimination based on sexual orientation and gender identity as violations of Title IX as well as to counteract the Trump Administration’s stricter ways of defining and determining sexual harassment.

Despite strides in favor of these often-antagonized populations, the rules shy away from formally addressing the freedoms of another: transgender athletes.

Separate rules

The exclusion of rules about trans athletes was no surprise. The Biden-Harris Administration stated in 2022 that it would address the matter of discrimination in sex-separate athletics in another set of proposed rules, which it published and opened up to public comment about a year later.

This other set of regulations – proposed in April 2023 – bars schools from implementing blanket bans on transgender athletes but allows schools to put up limitations on eligibility that are in service of “important educational objectives, such as ensuring fairness in competition or preventing sports-related injury.” These limitations would also have to account for the sport in question, and competition and education level, along with having to “minimize harms” to the students affected.

“When they put out this new proposed [athletics] rule, it still was a little bit surprising to me that it didn’t explicitly come right out and say that certain kinds of separation are categorically discriminatory,” says Elana Redfield, federal policy director at the UCLA Williams Institute, a think tank and research center on LGBT public policy. “It didn’t say the exclusion of trans people is discriminatory explicitly. It said, ‘if you’re going to do that, you have to have really good reason basically.’”

Some scholars have surmised that the exclusion of the divisive topic in the U.S. Education Department’s (ED) 2024 release was a strategic decision on the part of an administration, as the country approaches another general election, worried that taking a bold and firm stance on such a contentious topic could hurt them come voting season.

Given the number of anti-trans bills put forth in state legislatures across the country recently, politicians may bring up the topic during this election cycle, says Dr. Heath Davis, a political science professor at Temple University and author of the book Beyond Trans: Does Gender Matter?

“I think issues around transgender identity are not super well-understood,” Davis says. “It’s an issue that is relatively new in terms of the broader American public coming to an awareness. We’re at the place now that we understand that trans people exist, and also a lot of Americans support anti-discrimination measures that include trans people when it comes to employment and some other venues.”

According to an April 2024 Williams Institute report, almost half of the nation’s states have enacted laws banning access to gender-affirming care for transgender youth, and about 25 have policies restricting access to sports for trans students.

Others have noted that the lack of finalized regulations regarding athletics may have to do with the sheer amount of feedback the rules have received since they were opened for 30 days of public comment.

The 2023 proposed athletics rules have received 156,159 public comments, leaving ED to take time reviewing the comments and revising as warranted. For comparison, the comment period for ED’s Title IX revisions – which went from July 12, 2022, to Sept. 12, 2022 – garnered 240,203.

“That can be a time-consuming process,” Erin Buzuvis, professor of law and associate dean of academic affairs at Western New England University, says about the proposed rules. “I know it’s garnered a lot of comments, so they’ve got a lot of work to do on it. It’s also typical for agencies to take into account political ramifications regarding the timing of a release of regulations, so that could also be something that’s happening here.”

Title IX and athletics

From the beginning of Title IX’s existence, the topic of athletics has been a little different. The original Title IX rules had not addressed athletics. Rather, later changes, such as the 1974 Javits Amendment, brought intercollegiate sports under the purview of the education policy, Redfield explains.

ED’s finalized Title IX regulations make note of this distinction as well.

“Despite the general principle that differential treatment or separation based on sex presumptively results in prohibited sex-based discrimination, Congress has authorized the Department to approach athletics in a distinct manner,” the regulations read.

But if the federal government is going to allow for this carve out for sports, it should account for certain considerations, such as how the proposed rules interact with the purpose of youth participation in sports, Redfield argues.

The purpose of sports, particularly at the K-12 level, is to help kids stay healthy, be physically active, make friends, and gain self-esteem, says Scott Skinner-Thompson, an associate professor of law at the University of Colorado Boulder who focuses on LGBTQ issues.

In its own public comment on the rules, the Williams Institute makes a similar point among its several recommendations. The comment’s authors argue that schools should allow children to play on teams consistent with their gender identity at the elementary or middle school level or on teams at any level where participation is not based on competitive skill.

Denying trans students in K-8 these opportunities would “create substantial harm.”

“If you’re in a lower grade or [you’re a] younger-aged kid, participation in sports means a really different thing than it does if you’re in a competitive intercollegiate sport,” Redfield says. “We argued that the rule should potentially come right out categorically and say you can’t discriminate in these contexts.”

In the realm of athletics, in general, sometimes the playing field is just inherently not level, argues Dr. Matthew Patrick Shaw, assistant professor of law, public policy, and education at Vanderbilt University.

Although exemplary athletes such as Michael Phelps, Simone Biles, and Usain Bolt have physiological advantages that give them a leg up against their competition, there is no uproar in the same way. The focus on trans athletes in particular is more indicative of societal discomfort and prejudice than athletic differences, Shaw argues.

“That’s just the nature of sports. Somebody is going to have advantages that make them more competitive,” Shaw says. “But somehow, on the other hand, trans students are supposed to somehow feel guilty, suffer for, be excluded because of their anatomy. Same with intersex athletes like Caster Semenya.”

Inclusion in the field

In focusing on trans participation in sports, the U.S. is putting substantial effort and attention – and in some cases, anger and discrimination – toward what is ultimately a small percentage of people who are getting high visibility, says Dr. Jennifer Lee Hoffman, an associate professor in the University of Washington’s College of Education who studies issues surrounding intercollegiate athletics.

According to the Williams Institute, in 2022, 1.6 million people in the U.S., ages 13 and over, identify as transgender – 1.3 million were age 18 and over, and 300,000 were youth between ages 13 and 17. This means that trans people made up 0.5% of the U.S. adult population and 1.4% of youth.

The dismay that people have felt over the topic partly has to do with how society distinguishes sports, Hoffman suggests, namely the separation between men’s and women’s teams. While some sports have co-ed teams, the general separation persists.

“In the U.S., we’ve been reluctant to break free from this hyper-separated system,” Hoffman says. “I think the fundamental problem is we’re trying to apply a legal remedy to a structural system that doesn’t have anything except for these gendered characteristics by the ways in which we’re going to organize sport.

“So, I don’t think that legal solutions are always going to be the thing that’s going to create that opportunity and equity for everyone to be able to participate in sport without fear of discrimination.”

Rather, those in sports organizations and those running youth- and local-level sports have to do the work of creating more co-ed athletic opportunities not based just on gender, she says.

And even when remedies are devised, there has to be an understanding that such fixes can come with “incidental burdens” to bear for the groups who historically have not been discriminated against, Shaw notes. In this case, one of those burdened groups is women, who unfortunately already face industry hurdles, such as pay disparities.

“We have still to reach parity in opportunity and benefit for women’s sports,” Shaw says. “But within the group of women – and also within the group of men – the disadvantaged class are trans people. What we are going to have to figure out is what is an appropriate remedy that maximizes the participation of all people in these opportunities while minimizing incidental burdens.”