American States drive a wave of anti-transgender youth sports legislation
In the past year, more than half of the States in the United States of America have introduced bills and executive orders that aim to exclude transgender youth from participating in sports and athletics. These are just a portion of the 250 anti-trans bills filed around the country regarding sports and healthcare. Several states, including Alabama, Arkansas, Florida, Mississippi, Montana, Tennessee, West Virgina, South Dakota and Idaho have made public statements that these bans “are a road we want to go down”. These efforts have also surfaced at the federal level, where debates regarding an amendment to the COVID-19 relief legislation discussed denying schools federal funds, if the school allows students designated as male at birth to participate in sports programs designated for female athletes. This measure was ultimately defeated in the US Senate, but only by the marginal vote of 50 to 49.
II American Bar Association: Resolution 609
On 4 August 2021, the American Bar Association House of Delegates (ABA) took a stand on this issue at their Hybrid Annual Meeting. They overwhelmingly approved Resolution 609; a measure that opposes all Federal and State legislation, regulations and policies that prohibit transgender students from participating in sports and athletics in line with their gender identity. Special Adviser to the Commission on Sexual Orientation and Gender Identity (SOGI), Diana Flynn, delivered a speech at the conference, outlining the various significant harms that have occurred as a result of the legislation: “We’re dealing with one of the most vulnerable groups in the country... who suffer depression, are bullied and humiliated in these contexts. Many could find a way to belong in school activities like sports.” Flynn went on to analyse the impact of the State’s conduct, “When you have a situation where a Government, a State Government, steps in and says to a trans student: ‘your identity doesn’t count, you can no longer participate with your friends and your peers in school activities, you don’t deserve to do that’, that is an enormous creation of stigma and discrimination”.
In the Report accompanying Resolution 609, the SOGI contend that the States’ recent legislation is inconsistent with existing law, as Federal Courts have repeatedly held that individuals who are transgender are protected against discrimination on the basis of sex. One of the examples provided is the 2020 case of Bostock v Clayton County Georgia, where the US Supreme Court held that an employer who fires an individual for being gay or transgender violates Title VII of the Civil Rights Act 1964.
III Public Resistance
Professional athletes, businesses, medical associations and citizens have taken to social media to oppose the new legislation and support Resolution 609.
Victor Marquez, Chair of the SOGI, spoke out about this state of affairs: “this is about inclusion, diversity and equity for these young children and youth who simply want to be who they are. They want to be able to live a life where they can play sports”.
Non-binary identifier Indigo Giles commented: “the States don’t see us as real people. They see us as pawns in their made-up culture war”.
Ezra Cukor, a New York City Attorney who serves on the Board of Directors for the National Trans Bar Association remarked: “Opponents of LGBTQ+ people intensified their attacks on trans people after they lost marriage equality in Obergefell v Hodges. They focused on bathrooms and locker rooms in an attempt to banish trans people from the public space and it failed, so now, they are targeting trans youth”.
IV Opposing the Fairness in Women’s Sports Act
Idaho’s Fairness in Women’s Sports Act 2020 prohibits student transgender females from participating in sports teams reserved for cisgender females. Termed in the media as the “First-of-its-kind law”, the provisions stipulate that not only are trans-gender females prohibited from participation, if someone challenges a student’s sexual status, the student will be required to undertake invasive sex vilification exams. Further, cisgender females hold a private right of action to sue schools that allow transgender females to participate. As the Idaho law inspired the bills in at least 30 other states, students all over the country will be exposed to these measures.
Lindsay Hecox and an unnamed Jane Doe filed a suit to challenge the law, claiming it violated the equal protection clause of the US Constitution’s 14th Amendment. As a result of public outcry, the American Academy of Paediatrics, American Medical Association, American Psychiatric Association and 10 other health care organisations filed an amicus brief with the claim.
The Medical Association’s argued in their submissions, that barring transgender girls and women from participating in school sports consistent with their gender identity frustrates the treatment of gender dysphoria, as it prevents transgender people from living openly. Gender dysphoria is severe psychological distress experienced when an individual’s gender identity does not match the sex assigned at birth. US District Judge David Nye granted a preliminary injunction that prevents enforcement of the Idaho law, writing: “it is directed at excluding women and girls, rather than promoting sex equality and opportunities for women”. Idaho Governor Brad Little and other defendants are appealing Nye’s decision to the San-Francisco-based US Circuit Court of Appeals.
V Future Implications
The Human Rights Campaign Foundation has since filed a federal civil rights lawsuit in the Southern District of Florida challenging the state’s anti-transgender sports law. The Foundation has stated they are planning more suits against the similar laws in other States.
While this suggests various Court battles could lead to the overturning of anti-transgender sport laws, the question becomes - at what cost? In recent weeks, transgender youth who have testified against these bills have stated the political debates about their lives have dramatically worsened their mental health and anxiety. Further, impacted families have reported fleeing their States to protect their children from discrimination. It is difficult to comprehend the magnitude of damage that has already been done.
In contrast, there are no legal or other issues facing intersex or transgender men and boys interested in participating in school sport.
VI Concluding Remarks
As America faces the insurgence of discrimination law suits, Australia is celebrating the one year anniversary since eight peak Australian sporting bodies published guidelines for the inclusion of transgender people in their sports. Supported by the Australian Government Sports Commission and the Australian Human Rights Commission, the Australian Football League, Hockey Australia, Rugby Australia, Tennis Australia, Touch Football, UniSport Australia and WaterPolo Australia committed to transgender inclusion measures in October 2020. While the bills introduced in America focus on transgender exclusion in youth participants rather than professional athletes, the polarising differences between the two countries perspectives on transgender sports rights is staggering.
To read Resolution 609, please click here.