By Daniel Q. Leake II, of Jackson Lewis
Joining a host of states implementing laws prohibiting transgender athletes from competing in sports of their gender identity, Indiana has enacted legislation, over the governor’s veto, banning transgender girls from competing on their schools’ girls’ sports teams.
The issue of whether transgender athletes should be allowed to compete in the sport of their gender identity has been labeled as one of competitive fairness and science. This year, a transgender woman won the NCAA swimming title, becoming the first openly transgender woman to win a championship. Politicians and sports sanctioning groups have failed to address how to respectfully allow transgender athletes to compete. This issue has spilled over into the courts.
In addition to Indiana, states that have laws banning transgender students from participating in sports of their gender identity include:
- Alabama
- Arkansas
- Florida
- Georgia
- Idaho
- Iowa
- Mississippi
- Montana
- South Carolina
- South Dakota
- Tennessee
- Texas
- West Virginia
- Utah
Other states have passed similar legislation, but they have not yet become law or have been vetoed by the state’s governor. These states include:
- Arizona
- Kansas
- Louisiana
- Missouri
- North Dakota
- Oklahoma
As states continue to push this type of legislation, humans’ rights groups, such as the American Civil Liberties Union (ACLU), have initiated lawsuits to test the constitutionality of such laws. For example, since Indiana legislation passed, the Indiana ACLU has brought a federal lawsuit advocating that a 10-year-old transgender girl be allowed to compete on her school’s girls’ softball team. In West Virginia, a federal court blocked the state from enforcing a law banning transgender girls and women from participating in school sports, ruling in favor of a 11-year-old transgender girl wanting to compete for her school’s girls’ cross-country and track teams.
The U.S. Supreme Court has yet to hear a case specifically regarding transgender student athletes. However, the Court ruled, in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), the term “sex” includes a person’s “gender identity” in discrimination cases covered by Title VII of the Civil Rights Act. The Court went on to hold “Title VII’s prohibition against sex discrimination includes a prohibition against discrimination based on sexual orientation and gender identity.” The Supreme Court made it clear this language applied only to Title VII and not to Title IX of the Education Amendments and school sports.
