Over the past few years, champion athletes and transgender women Cece Telfer and Lia Thomas have elevated discussions about transgender athletes’ participation in competitive sports. The conversations about transgender athlete participation have led to a national discussion about balancing fairness in athletic competition and the inclusion of transgender students in athletic competition.
The elevation of this issue to national and international focus has led states, the National College Athletic Association (NCAA) and international athletics governing bodies to implement or modify policies related to transgender athletes’ eligibility to participate in sports.
The Movement Advancement Project tracks state policies related to transgender students’ eligibility for athletics. MAP found that 18 states have policies stipulating that eligibility to participate in athletics must be based on a student’s sex as assigned at birth. All of these bills have been enacted since 2020, and most of the bills were enacted in the last two years. These bills also typically require athletics programs at K-12 and higher education institutions to be male, female or coed, based upon sex assigned at birth. In contrast, some states have issued guidance or have existing regulations acknowledging that athletic participation can be based on a student’s gender identity.
Earlier this year, the NCAA amended its policy on transgender students’ participation in athletics. The new NCAA policy leaves transgender athletes’ participation up to the national governing body of each individual sport. Full implementation of the sport-specific guidelines commences with the 2023-24 school year.
The former NCAA policy noted that transgender men were allowed to take testosterone as part of their transition and were allowed to participate in male sports, but were ineligible for female sports. Transgender men who were not taking testosterone retained their eligibility to compete on women’s teams. The former policy also approved transgender women’s eligibility to participate in women’s athletics after a year of testosterone suppression. Transgender women retained their eligibility to compete on men’s teams during their initial transition period.
For example, the International Swimming Federation recently updated its transgender athlete participation eligibility criteria for elite competitions. The federation’s policy states that transgender women are eligible for women’s sports in elite competition if they suppressed male puberty before age 12 or Tanner Stage 2 of puberty. Transgender men are eligible for men’s sports but must obtain a therapeutic use exemption if they are taking testosterone.
A therapeutic use exemption is required because testosterone is considered a performance enhancing drug and is otherwise banned for use by athletes. USA Swimming adopted an interim policy which would have required transgender women to undergo 36 months of testosterone suppression, but the NCAA did not want to change their eligibility criteria during the competitive season.
The Biden Administration released a proposed set of Title IX rules in June that included sexual orientation and gender identity as protected classes under Title IX provisions. However, they noted a plan to initiate a separate rulemaking process for transgender athletes’ participation in sports.
Current litigation is pending throughout the country related to states’ efforts to align athletic participation to students’ sex assigned at birth and the Biden Administration’s efforts to include sexual orientation and gender identity as part of the protected classes of individuals within Title IX regulations.
The Biden Administration has yet to release their proposed rule for transgender students’ participation in athletics. This proposed rule will be subject to a public comment period before it becomes a final rule. It may also face litigation and could be subject to congressional review depending on when the final rule is released. Settling the issue of transgender students’ participation in athletics into law may take years because of pending litigation and the likelihood that some of these cases may end up before federal appeals courts and/or the U.S. Supreme Court.
State leaders may want to stay updated on developments of current litigation because future court rulings may impact state or federal policy related to transgender students and athletics. A number of factors could determine transgender students’ eligibility to participate in athletics based upon their gender identity.