This is an excerpt from Introduction to Sport Law With Case Studies in Sport Law-3rd Edition by John O. Spengler,Paul M. Anderson,Daniel P. Connaughton & Thomas A. Baker III.
A recent, nationwide, sport-related issue involving aspects of constitutional law (e.g., equal protection), among other antidiscrimination laws (e.g., Title VII of the Civil Rights Act, Title IX of the Education Amendments of 1972), is the participation of transgender girl student-athletes on girls’ or women’s teams. Some states have passed laws banning such participation, others have introduced such legislation, and several other states have friendly policies that help facilitate the full inclusion of transgender and nonbinary students in high school athletics (Transathlete.com, 2021). Policies allowing transgender athletes to participate on teams that match their gender identity have been around for years. Since 2004, the Olympics have had transgender-inclusive policies. New Zealand’s Laurel Hubbard became the first ever transgender athlete to participate in the Olympics when she competed in women’s weightlifting at the 2021 Tokyo games (BBC News, 2021). In 2013 California passed legislation that allows transgender youth (i.e., K–12 students) to participate and compete on teams that match their gender identity. Since 2018, U-SPORTS, Canada’s version of the NCAA, has permitted transgender athletes to compete with the team that matches their identity (Turban, 2021). Under NCAA bylaws, transgender student-athletes are allowed to compete for college teams with some restrictions (NCAA, 2011). Proponents of legislation and policies that seek to ban transgender girls and women from participating on girls’ and women’s teams often claim that women’s sports could someday become dominated by transgender women who have an unfair advantage because of the strength gains typically conferred by testosterone and other male hormones during puberty (Brassil, 2021).
In June 2021 Mississippi became the second state, after Idaho in 2020, to ban transgender women and girls from competing in women’s sports. The law, termed the Mississippi Fairness Act, will require public schools and universities to have athletes compete according to their sex assigned at birth rather than gender identity. Specifically, it states, in part
SECTION 3. Designation of athletic teams. (1) Interscholastic or intramural athletic teams or sports that are sponsored by a public primary or secondary school or any school that is a member of the Mississippi High School Activities Association or public institution of higher education or any higher education institution that is a member of the NCAA, NAIA or NJCCA shall be expressly designated as one of the following based on biological sex:
“Males,” “men” or “boys;”
“Females,” “women” or “girls;” or
“Coed” or “mixed.”
(2) Athletic teams or sports designated for “females,” “women” or “girls” shall not be open to students of the male sex.
(3) If disputed, a student may establish his or her sex by presenting a signed physician’s statement which shall indicate the student’s sex based solely upon:
The student’s internal and external reproductive anatomy;
The student’s normal endogenously produced levels of testosterone; and
An analysis of the student’s genetic makeup. (Mississippi Senate Bill 2536, 2021)
Laws similar to Mississippi’s, which would require transgender girls to participate on boys’ teams, were being considered in 2021 by legislators in more than two dozen other states (Brassil, 2021). Many of the bills introduced in the 2021 legislative session would, in addition to the participation restrictions, require a student-athlete whose gender was questioned to undergo a physical examination or to provide certain medical information, such as the results of hormone tests or evidence of operations, to certify ability to compete. In 2021 representatives in Florida and Utah also introduced similar federal legislation that seeks to ban transgender girls and women from participating in girls’ sports. But President Biden, also in 2021, signed an Executive Order on Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation. The order states in part: “All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation. These principles are reflected in the Constitution, which promises equal protection of the laws” (The White House, 2021).
At the time this chapter was written, in Hecox v. Little, the U.S. Court of Appeals for the Ninth Circuit was reviewing an August 2020 decision by a federal district judge that blocked Idaho’s state law that bars transgender female student-athletes from girls’ sports, ruling that it likely violates the Equal Protection Clause of the Fourteenth Amendment. In 2020 President Trump’s administration filed a brief supporting Idaho’s law. In February 2021 President Biden’s administration withdrew that brief. Several other court cases dealing with transgender athletes are pending, and more are sure to follow.