Title IX's next battle: The rights of transgender athletes

When the gender equity legislation known as Title IX became law in 1972, the politics of transgender sports was not even a blip in the national conversation. Today, it is one of the sharpest dividing points in American culture.

As the transformational law heads into its second half-century on the books, the Biden administration wants transgender athletes to enjoy the same protections Title IX originally gave to women when it was passed 50 years ago. That stance is at odds with efforts in states across the country.

"We're at a time where Title IX is going to be exploited and celebrated," said Donna de Varona, the Olympic champion swimmer who heads the Women's Sports Policy Working Group, which seeks a "middle way" to be inclusive of transgender athletes while also not "forcing" what it sees as unfair competition. "But people aren't going to look at the underbelly because it's complicated and nuanced. And it has always been complicated and nuanced."

Without federal legislation to set parameters for this highly technical issue -- on the front line of a culture divide that also includes abortion rights, gun control and " replacement theory," among other topics -- high school athletic associations and legislatures in no fewer than 40 states have filled the void on their own.

There are some 15.3 million public high school students in the United States and a 2019 study by the CDC estimated 1.8% of them -- about 275,000 -- are transgender. The number of athletes within that group is much smaller; a 2017 survey by Human Rights Campaign suggested fewer than 15% of all transgender boys and transgender girls play sports.

Oklahoma Gov. Kevin Stitt signs a bill March 30 in Oklahoma City that prevents transgender girls and women from competing on female sports teams. Stitt signed the bill flanked by more than a dozen young female athletes, including his eighth-grade daughter Piper.Sean Murphy ~ Associated Press, file

Yet as of May, 19 states had passed laws banning or restricting transgender participation in sports despite the general lack of a problem to address.

Other measures do the opposite, allowing gender identity to determine an athlete's eligibility. There are myriad rules and guidelines in place across the country, state to state and sometimes sport to sport or even school to school.

The debate essentially boils down to advocates who want to protect the space Title IX carved out for cisgender women -- women whose gender identity matches the sex they were assigned at birth -- and those who want transgender athletes who compete as females to enjoy the same protections as anyone else. Consensus is nowhere in sight, and the fights are piling up.

Last fall, the American Civil Liberties Union and others filed a lawsuit against Tennessee's ban on transgender athletes playing school sports. It was brought on behalf of Luc Esquivel, a freshman golfer who was assigned the sex of female at birth but in 2019 told his parents he identifies as male.

"I was really looking forward to trying out for the boys' golf team and, if I made it, training and competing with and learning from other boys and improving my game," Esquivel said. "Then, to have the legislature pass a law that singled out me and kids like me to keep us from being part of a team, that crushed me, it hurt very much. I just want to play, like any other kid."

All the anti-transgender legislation hits home for Kyla Paterson, who was able to play soccer after the Iowa Girls High School Athletic Union adopted regulations for the inclusion of transgender girls in 2014.

"When I was in high school, people called me a 'monster' because I was bigger than the other girls," she recalled on the Trans Porter Room podcast earlier this year, not long before Iowa passed its transgender athlete ban. "That's what they see us as now, especially in the Republican Party in Iowa. They see us as not human and as predators."

The complexity of the debate has also placed sports icons in peculiar positions. De Varona, Martina Navratilova, Edwin Moses and Chris Evert have long been at the forefront for equality in women's sports. They want a way to include transgender athletes in mainstream sports but ensure cisgender females remain in the mix to win, insisting trans athletes have an advantage in the "participation gap" by default.

De Varona's group offers a 37-page "briefing book" on the topic. Among its proposals: Transgender females who have not taken steps to "mitigate" their testosterone advantage through "gender-affirming" hormones can participate in non-competition aspects of women's sports, but not in actual games unless they have a "direct competitor" in the event.

The group wants lawmakers to take cues from international sports, which have come up with regulations for transgender athletes and others with higher-than-normal levels of testosterone. That conundrum, captured most poignantly by the journey of South African sprinter Caster Semenya,who has what's called 46 XY DSD condition, has been fraught with contradictions and frustration. Semenya, forced to choose between either using drugs or surgery to lower her testosterone level, decided instead not to compete at the Tokyo Olympics.

"It's like stabbing yourself with a knife every day. But I had no choice," Semenya said in a recent interview with HBO about the hormone-altering drugs she took for a time in order to stay eligible for certain middle-distance events.

Imperfect as they may be, the rules that govern transgender sports in track and field were products of no less than 13 years of research involving scientists from across the globe, along with countless lawsuits and hearings in front of tribunals that are still deciding the case of Semenya, now 31.

By comparison, states in the U.S. are enacting laws almost by the month. The first ban, enacted by Idaho in 2020, is one of many being challenged in court.

Rodrigo Heng-Lehtinen, executive director of the National Center for Transgender Equality, called the bans overly harsh.

"It puts a target on the backs of trans youth and makes them feel unsafe," Heng-Lehtinen said. "These state bans are sweeping. They categorically exclude a group of people from playing any kind of sport at any level."

Debates over the legislation are often accompanied by arguments over hot-button topics, including transgender students' use of school bathrooms, whether schools should teach about sexual orientation and gender identity, and parental consent when it comes to gender confirmation for minors.

But the big fight in transgender sports centers on the idea of fair competition, where extensive research is still generally lacking on elite athletics and virtually nonexistent when it comes to determining whether, say, a sophomore transgender girl has a clear advantage over her cisgender teammates.

"People say 'Well, trans women have advantages, therefore, it can't be fair,' or 'Trans women are women and so trans rights aren't up for debate,"' said Joanna Harper, a transgender woman and researcher at Loughborough University in Britain who has helped World Athletics, the International Olympic Committee and other major sports organizations shape transgender policy. "And these very simplistic statements appeal to two different political bases. And it's unfortunate that people resort to these simplistic ways to frame the argument, and in many cases seem to be unwilling to to form any meaningful compromise."

In May, Indiana lawmakers overrode a gubernatorial veto to enact a law banning transgender females from competing in girls high school sports, blowing past the governor's argument that there was no problem in K-12 sports requiring "state government intervention."

The ACLU almost immediately filed a lawsuit challenging the law. On the other end of the spectrum, four cisgender female high school athletes in Connecticut are challenging rules that allow transgender athletes to participate in sports based on their sexual identity.

At the federal level, the Education Department under the Trump administration contended in a key case that the word "sex" be interpreted strictly to mean a person's assigned sex at birth. Under the Biden administration, the department views Title IX's iconic phrasing about discrimination on "the basis of sex" to also include "include discrimination on the basis of gender identity and sexual orientation."

As the 50th anniversary of Title IX arrives, a firmer solution -- a new law or amended version of Title IX -- seems unlikely. President Joe Biden, the day after his inauguration, rolled back several of the Trump administration's rules regarding transgender rights, but legislation has gone nowhere.

With midterm elections underway, Republicans have consistently used transgender sports as a campaign issue. De Varona says politicization of the topic blunts some of the legitimate arguments by those, including in her policy group, who would like to ensure that women aren't denied the level playing field Title IX aspired for 50 years ago.

Still, de Varona said, "let's not demonize transgender students, and let's find a way to nuance it."

"But again," she added, "nobody wants nuances."

AP sports writer Erica Hunzinger contributed.

For more on Title IX's impact, see AP's full package: https://apnews.com/hub/title-ix Video timeline: https://www.youtube.com/watch?v+NdgNI6BZpw0