Lawmakers in over a dozen states are poised to trigger a legal battle with the Biden administration over whether biological male athletes can compete on female high school and college sports teams.
Over a matter of months, 13 state legislatures began deliberating various laws that would dramatically limit the availability of athletic opportunities for biological men who identify as women.
The North Dakota House of Representatives earlier this month passed a bill barring high school athletes from participating in sports against those who aren’t a member of their biological sex.
A similar piece of legislation entitled the ” Mississippi Fairness Act” was passed by the Mississippi state Senate the same week. Under that law, all state primary schools and universities would be ordered “to designate its athletic teams or sports according to biological sex.”
In Utah, a House committee approved language in a bill that would force all schools in the state, public and private, to segregate all athletics by biological sex. Any schools found in noncompliance of the law would be subject to legal action or a loss in funding.
But as many state Republicans prepare their own offensive in one of the nation’s most divisive culture war battles, they face a new foe: President Biden.
On Day One of his presidency, Biden signed an executive order mandating any school that accepts federal funds allow transgender men to play on women’s sports teams in an effort aimed at “preventing and combating discrimination on the basis of gender identity or sexual orientation.”
“Because the Biden order goes into effect 100 days after it’s signed, these state legislators are working overtime because until the federal agencies that directly implicate local citizens like student-athletes start moving, until it trickles down, they have a very short window to pass their own legislation,” said Sarah Perry, a former attorney for the Department of Education and legal fellow at the conservative Heritage Foundation. “So then, you get into a conflict analysis between the power of the executive branch and the state legislator, particularly on issues concerned with education.”
The legal rationale for Biden’s executive order lies in the Supreme Court’s Bostock v. Clayton County ruling, which stated the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation or if they are transgender. The Biden administration interpreted the Supreme Court’s findings to extend to Title IX, a provision in a 1972 federal law that, in part, compels schools to provide equal access to sports for both genders.
‘Destroy women’s sports’
Critics of Biden’s actions point to cases in Connecticut in which biological men have won 15 state women’s championship titles and 17 school records. Students in that state have filed a lawsuit against the Connecticut Interscholastic Athletic Conference for sex discrimination, arguing that allowing biological men to compete against them violates Title IX and cost them opportunities to earn scholarships.
Republicans, and a few Democrats like former Hawaii Rep. Tulsi Gabbard, across the country have scrambled to stop what they say is the effective end of women’s sports.
Tennessee Gov. Bill Lee, a Republican, issued his support for a law currently being debated in the state Legislature that would only allow students to play sports according to their biological sex earlier this month.
“Transgenders participating in women’s sports will destroy women’s sports,” he said. “It will ruin the opportunity for girls to earn scholarships. It will put a glass ceiling back over women that hasn’t been there.”
As states rush to pass bills before Biden’s Department of Education can begin enforcing his executive order, prolonged litigation between the sides is all but guaranteed.
Left-wing groups, including the American Civil Liberties Union and the Human Rights Council, have already supported or filed lawsuits of their own in states like Idaho to overturn transgender athlete bans. With potentially 13 more states passing new laws by the end of March, the issue could well make its way to the U.S. Supreme Court.
“I do think the Department of Justice, which is the ultimate enforcement wing of the Department of Education, will very likely file a statement of interest in these cases or open their own directed investigations,” said Perry, who anticipated lawsuits from the federal government. “That could be a very protracted process. It is a nightmare for these states, they’ll have to defend lawsuits nimbly and quickly first from the ACLU and the like, but at the same time, the DOE and DOJ will open investigations into the states. It could be a mess, truly be a mess.”
Proponents of Biden’s executive order stress the importance of inclusion for gay and transgender children, who suffer from high suicide rates and mental health problems. Despite countless studies demonstrating key differences in strength and lung capacity between the two sexes, activists argue there’s no conclusive evidence that transgender women hold any innate advantage over biological women.
“The courts rightly have been concluding that when schools fail to respect the identity of transgender children and youth, they effectively exclude those students from activities that are important for every child’s development of life skills, self-esteem, and physical health,” Jennifer Pizer, the director of law and policy at the gay and transgender civil rights organization Lambda Legal told the Washington Examiner in a statement.
“However well-intentioned, these state bills are misguided because they are based on misunderstandings of the medical science about who transgender kids are, the serious impacts of exclusion, the lack of problems in the many states that have had nondiscrimination rules in place for years now, and the collateral harms for non-transgender girls whose identity and privacy may be challenged by others who perceive them as insufficiently conforming to gender stereotypes,” she said.
Courts remain split on whether states hold the authority to segregate sports by biological sex, although LGBT activists are confident that the Bostock decision created an insurmountable hurdle for Republicans hoping to succeed with their efforts.
Overturning Biden’s executive order, activists say, would require contradicting a Supreme Court ruling from just one year ago.
Many conservatives view Biden’s interpretation of Bostock as a dramatic overreach and point to Justice Amy Coney Barrett’s criticism of Obergefell v. Hodges, which legalized gay marriage nationwide. In her analysis of that ruling, Barrett argued that courts should allow states to decide transgender issues like access to bathrooms.
Author: Joseph Simonson
Source: Washington Examiner: States set for clash with Biden administration over transgender athletes