By Libba Galloway, Stetson University
Participation by transgender athletes has been a hot-button issue in recent years, and this past year was no exception. The success of trans athlete Lia Thomas in NCAA women’s swimming heightened concerns about competitive equity and has contributed to a multitude of legal and policy developments as to participation by transgender women in women’s sports.
In 2022, many states passed laws prohibiting trans women from participating in women’s sports; similar proposals failed in some states; and similar legislation is pending in other states. Federal and state courts entertained lawsuits challenging state laws banning trans women from participating in women’s sports, as well as challenges to policies permitting trans women to participate in women’s sports. From a policy standpoint, prominent sports organizations changed their rules as to participation by trans women in women’s sports, in very different ways. And amidst these varying responses as to whether trans women may participate in women’s sports, the most significant questions of law have remained unanswered.
State Laws
Prior to 2020, no state statutes expressly addressed whether trans women could participate in women’s sports. This started changing in 2020, with Idaho’s adoption of a statute banning trans women from participating in women’s sports. Since then, it seems you need a scorecard to tell where trans women may and may not compete – and even then, the scorecard better be written in pencil, not ink.
The year 2022 saw legislation prohibiting trans women from participating in women’s sports adopted in nine states – Arizona, Indiana, Iowa, Kentucky, Louisiana, Oklahoma, South Carolina, South Dakota, and Utah. When added to the states that passed similar legislation in 2020 and 2021 (Alabama, Arkansas, Florida, Idaho, Mississippi, Montana, Tennessee, Texas, and West Virginia), the total number of state statutes banning trans women from participating in women’s sports has grown to 18.
But several of these statutes encountered legal challenges in 2022 that have at least temporarily rendered them ineffective. In Roe v. Utah High School Activities Association, a Utah state court granted the plaintiff’s request for a preliminary injunction against enforcement of Utah’s statute on the grounds that it violates equality guarantees of the Utah Constitution. In A.M. v. Indianapolis Public Schools, the U.S. District Court granted the plaintiff’s request for a preliminary injunction against enforcement of Indiana’s statute on the grounds that it violates Title IX. Additionally, in Barrett v. Montana, a state court held that Montana’s ban on participation by trans women in women’s sports in higher education violates the Montana Constitution, but the court declined to apply that holding to K-12.
As to other states, bills proposing bans on trans women participating in women’s sports failed in six states – Kansas, Maryland, Missouri, New Hampshire, Pennsylvania, and Wyoming. Similar legislation is pending in a number of other states.
Policy Changes
Olympic Sports: In November of 2021, the International Olympic Committee (IOC) issued a framework for participation of transgender athletes that shifts the focus from individual testosterone levels to a sport-by-sport approach. Throughout 2022, national and international governing bodies have been scrambling to update their policies. The following list of organizations which changed their policies in 2022 shows just how much the policies vary:
- World Aquatics (formerly FINA), the international governing body of swimming, diving, and water polo, now prohibits trans women who transitioned after age 11 from competing in women’s events.
- US Rowing now allows athletes to compete in accordance with their gender identity, but will default to international rules for collegiate rowing and international competitions.
- World Triathlon now requires trans athletes to have a testosterone concentration less than 2.5 nanomoles per litre for at least two years in order to compete as women. Also, at least 48 months must have passed since the athlete has competed as a male in any sport.
NCAA: Since 2011, the NCAA has allowed trans women to compete in intercollegiate sports after one year of testosterone suppression therapy. In January of 2022, the NCAA updated its policy to align with the framework established by the IOC by requiring transgender student-athlete participation in each sport to be governed in accordance with the policy set by the national governing body of that particular sport. The policy includes phase-in provisions, and will be fully implemented in the 2023-2024 academic year.
The Leading Cases
Proponents of broad participation by trans athletes, as well as those who favor limitations on the ability of trans athletes to compete, are keeping a close eye on two federal lawsuits filed in 2020. The year 2022 saw developments in each of these cases, although not to the complete satisfaction of either side of the debate.
In the first case, Soule v. Connecticut Association of Schools, Inc., four cisgender girls sued the Connecticut Interscholastic Athletic Conference (CIAC), alleging that its policy allowing trans athletes to compete in accordance with their gender identity violates Title IX. Counterarguments were made to the effect that not only does the policy not violate Title IX, but both Title IX and the 14th Amendment’s Equal Protection clause actually mandate that trans athletes be permitted to compete in accordance with their gender identity. In June of 2021, the U.S. District Court dismissed the lawsuit as not justiciable, and the plaintiffs appealed.
This past December, the Second Circuit Court of Appeals upheld the lower court’s dismissal by ruling that the plaintiffs lacked standing to sue. Among other things, the Court held that the plaintiffs’ claims that the participation of the transgender athletes deprived them of wins, state titles, and college scholarships were just too speculative. Attorneys for the plaintiffs are considering an appeal to the U.S. Supreme Court.
The second case, Hecox v. Little, involves a challenge to the Idaho statute prohibiting trans women from competing in women’s sports by Lindsay Hecox, a trans woman intending to run cross-country at Boise State University. In August of 2020, the U.S. District Court issued a temporary injunction blocking enforcement of the law, based on the likelihood that the plaintiff would succeed in her claim that it violates the 14th Amendment’s Equal Protection Clause.
The defendants subsequently appealed to the Ninth Circuit Court of Appeals to have the case dismissed on the grounds that the case was moot due to Hecox no longer attending Boise State. Because of factual questions that remained unanswered, the Ninth Circuit remanded the case back to the lower court. This past July, the District Court declined to dismiss the case because Hecox had re-enrolled at Boise State and might still be able to compete in cross-country there. The defendants once again appealed to the Ninth Circuit to dismiss the case, and oral arguments were conducted in November.
These two cases are clearly moving along from a procedural standpoint, but they’re not providing answers to the substantive questions that many are asking. Do educational institution policies which permit trans women to participate in women’s sports violate Title IX, or are educational institutions mandated by Title IX to permit trans women to participate in women’s sports? Do laws which ban trans women from participating in women’s sports violate the 14th Amendment’s Equal Protection Clause? And will the U.S. Supreme Court ultimately be called upon to decide these questions?
The answers to these questions will likely impact the enforceability of state laws banning trans women from participating in women’s sports, as well the enforceability of sports organization policies governing participation by trans women in women’s sports (at least to the extent those sports are conducted in the U.S.). So unless and until these questions are answered, continue to mark your scorecard in pencil, not in ink.
Libba Galloway is Assistant Professor of Practice, Chair of the Management Department, and Director of the Business Law Program at Stetson University’s School of Business
References
A.M. v. Indianapolis Public Schools, 1:22-cv-01075-JMS-DLP (S.D. Ind. Jul. 26, 2022)
Bans on transgender youth participation in sports. Movement Advancement Project. (n.d.), https://www.lgbtmap.org/equalitymaps/sports_participation_bans
Barrett v. Montana, DV-21-581B (Montana Eighteenth Judicial District Court, Gallatin County, Sept. 14, 2022)
Cernuda, O. (2022, August 4). World Triathlon Executive Board approves transgender policy. World Triathlon. https://www.triathlon.org/news/article/world_triathlon_executive_board_approves_transgender_policy
Fahey, C. (2022, June 19). World swimming’s governing body adopts new rules for transgender athletes. PBS NewsHour. https://www.pbs.org/newshour/world/world-swimmings-governing-body-adopts-new-rules-for-transgender-athletes
Hecox v. Little, 479 F. Supp. 3d 930 (D. Idaho 2020); 20-35813, ID: 12153687 (9th Cir., June 24, 2021); 1:20-cv-00184-DCN, Document 105 (D. Idaho, July 18, 2022)
International Olympic Committee (2021, November 16). IOC releases framework on fairness, inclusion, and non-discrimination on the basis of gender identity and sex variations. https://olympics.com/ioc/news/ioc-releases-framework-on-fairness-inclusion-and-non-discrimination-on-the-basis-of-gender-identity-and-sex-variations
Roe v. Utah High School Activities Association, No. 220903262 (Third Judicial District Court, Salt Lake County, Utah, Aug. 19, 2022)
Soule v. Connecticut Association of Schools, Inc, No. 3:20-cv-00201-RNC, Document 178 (D. Conn., Apr. 25, 2021); No. 21-1365-cv, Document 241-1, 3438199 (2nd Cir., Dec. 16, 2022)
Transgender student-athlete participation policy. NCAA.org. (n.d.). https://www.ncaa.org/sports/2022/1/27/transgender-participation-policy.aspx
US Rowing (2022, December 1). US Rowing’s amended gender identity policy posted. https://usrowing.org/news/2022/12/1/general-usrowings-amended-gender-identity-policy-posted.aspx
