The weaponization of Title IX against trans youth in sports has reached an inflection point

Influential organizations are pushing dangerous policies under the guise of "protecting" girls and women in sports.

Author note: I am a cis, straight, white, heterosexual woman. My life has been defined by the privilege of my able-bodiedness, my skin, and my economic status. I believe trans and queer voices should be centered in this advocacy, storytelling, and organizing, and I also know that we need more cis women to loudly and authoritatively resist the WSPWG claims about trans girls in sports. I want to add my research and my voice to help dissect the obscure nuances and importance of Title IX, sports, and regulatory policy. The WSPWG does not speak for me. They do not speak for all of us. Let me show you why. -Emily Stets

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Protecting access to sports for transgender youth must be a top priority in 2023

An inflection point for Title IX is coming: At some point in the upcoming weeks or months, the Biden administration will launch a rulemaking process to address Title IX’s application to athletics. 

Last year, on the 50th anniversary of Title IX being signed into law, the Department of Education unveiled updated Title IX regulations, which, among other things, reinforced that Title IX protections should be extended to LGBTQ students. But one crucial thing was missing from these proposals: protections for transgender students in sports. This was telling, because on his first day in office, Biden issued an executive order stating that transgender children should be allowed to participate in the sport corresponding with their gender identity. So, what evolved between January 20, 2021 and June 23, 2022?

Well, after Biden’s first executive order, the furor around trans girls and women in youth sports reached a fever pitch.

In 2022, at least 16 states introduced bills requiring trans girls and women to undergo gender verification tests prior to competing. In 2021, eight state bills proposed gender verification via birth certificate; seven states have proposed genital inspection, testosterone level testing, chromosomal testing, and genetic testing.

The legislative onslaught was driven by multiple anti-trans activists and interest groups, both domestic and international, that popped up under the guise of protecting women and girls in sports. In reality, their exclusionary efforts actively harm the health and well-being of transgender youth and subject the bodies of cisgender and transgender girls, particularly those who are racialized, to archaic and invasive levels of scrutiny, all while doing nothing to address the actual systemic issues girls’ and women’s sports face.

Today, I want to focus on a particularly dangerous organization, which launched two years ago this week, on National Women and Girls’ Sports Day 2021: The Women’s Sports Policy Working Group (WSPWG). 

What is the Women’s Sports Policy Working Group? 

The WSPWG is an interest group formed by pivotal Title IX and gender equity champions, with a mission to “‘affirm girls’ and women’s sport while including transgender athletes.” The group boasts an all-star roster of women’s sports pioneers, including legendary tennis player Martina Navratilova; Olympic gold medalist swimmer and CEO of Champion women, Nancy Hogshead-Makar; Olympic gold medalist swimmer and USOPC board member Donna De Varona; and president of The Drake Group, Donna Lopiano, among others. They claim to be the voice of cis women in sports, fiercely advocating against the (get this) “discrimination” that cis women apparently now face, discrimination they attribute directly to transgender inclusion in sports.

The WSPWG represents a minority amid advocacy groups in women’s sports — leading organizations, such as the Women’s Sports Foundation, the National Women’s Law Center, and Athlete Ally support more trans-inclusive policies. Still, they are incredibly influential because they purport to provide a “middle way” in the debate around trans girls’ and women’s participation in sports. But their arguments -- and whom they claim to represent -- are misused at best and actively harmful at worst, and have implications for all young people in sports. 

They contend that biological differences (driven by testosterone levels in puberty) are “outcome determinative” and unfairly advantage trans girls and women in sports. Their recommendations would restrict trans girls’ and women’s access to certain sports teams if they have experienced any stage of “male” puberty. 

This group of advocates is a dangerously effective lobbying group with a history of successfully influencing state and federal legislation and developing effective media campaigns -- on a completely different issue. Nancy Hogshead Makar has spoken openly about her sexual assault, her Olympic swimming career, and her federal lobbying efforts to pass the Safe Sport Act, to establish appropriate guardrails for sexual assault prevention and tracking for USOPC athletes. Countless others in the group have been voices at the Women’s Sports Foundation, championed LGBTQ equality in sports, and worked in research and academia to further Title IX protections.

For many in the women’s sports community, it is painful and difficult to simultaneously hold the WSPWG founders’ accomplishments in one hand and their anti-trans efforts in another. But it’s crucial to pay attention to the power this group has, and the misinformation and discrimination it is helping propagate. 

The assertion: trans athletes have an “inherent” and unfair advantage

The WSPWG contends that sports are segregated because of “inherent biological differences,” and that the onset of puberty results in a discrete, documented performance gap between male and female sexes -- essentially, testosterone onset makes boys faster and stronger, so women need a separate category to compete in. 

But there are many problems with this.

First of all, the prevailing research on testosterone in athletes remains limited and often methodologically flawed. Testosterone studies that do exist rely on small, ungeneralizable sample sizes, with some admitting their methods focus only on proxies (like muscle mass and strength) for athletic performance. While some studies have indicated testosterone has some correlation with performance, this has proven trivial in studies appropriately designed to assess causal links directly. 

Based on assumptions about testosterone, many advocates clamor for trans athletes to mitigate their “advantage” through hormone therapy, such as testosterone suppression. But a recent meta-analysis found no firm basis to indicate that trans women have a consistent and measurable overall performance benefit from testosterone suppression -- which renders the “mitigation” argument moot. Few studies exist with the appropriate sample demographics needed to draw a causal relationship, yet these flawed studies have provided the foundation for policies in elite sports. 

And beneath the misused science lies a sordid history. Throughout the 20th century, sports became an unfortunate laboratory to project anxieties about women’s physicality and presentation of Western femininity (or lack thereof), and international sport institutions used physical anatomy, chromosomes, and genetic makeup to determine sex and classification for competition. This is a part of a long history of policing women’s bodies in sport intimately linked with discrimination against Black and Brown athletes, misogyny, and Western characterizations of femininity (thinness, etc).

The inconclusive science and the discrimination it perpetuates doesn’t merit certainty at the elite level, let alone an application to the elementary, middle, high school, and recreation levels.

The assertion: Trans inclusion will take away opportunities from cisgender athletes

The WSPWG and others claim that trans girls’ participation negatively impacts cisgender girls’ participation, thereby precluding fair competition. This claim has gained public momentum because of its narrative weight, but doesn’t withstand scrutiny. As of 2021, fourteen states had fully trans-inclusive sports policies. In states with trans-inclusive policies, high school girls’ participation in sports remained unchanged from 2011 to 2019. In two key states with trans-inclusive policies (California and Connecticut), girls’ sport participation actually increased, with California reporting a 14% increase.

Unfortunately, lawmakers continue to perpetuate the myth that “trans girls supplant cisgender girls” when developing their bills, using the misleading  (yet politically effective) terms of “protecting” and “saving” women’s sports in legislation. Examples include West Virginia’s “Save Women’s Sports Bill,” and South Carolina’s “Save Women’s Sports Act,” which would even allow students to file lawsuits if they are “kept off a squad” as a result of a trans kid participating on a team. When pressed, in almost every case, lawmakers cannot cite a single instance where trans participation has caused such problems in their region. The judge in the B.P.J. v. West Virginia

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case concurred, declaring, “I have been provided with scant evidence that this law addresses any problem at all, let alone an important problem.”

The reason some legislators believe trans girls to be a true threat to girls and women’s sports stems from hyper fixation on a few specific cases of trans athletes outperforming cisgender athletes.

One of the most high-profile pieces of state legislation came out of Connecticut, where trans-inclusive sport policies have been in place since 2013. In 2020, the families of three cisgender high school runners filed a lawsuit against the CIAC to block trans girls from competing in sports, claiming that trans girls’ participation had deprived their daughters of track titles and scholarship opportunities. The case highlighted intersecting dimensions of gender identity and race, as the cisgender athletes had lost to two Black trans sprinters, Terry Miller and Andraya Yearwood, who frequently outperformed their competitors. In December 2022, a federal appeals court threw out the case.

“All four plaintiffs regularly competed at state track championships as high school athletes, where plaintiffs had the opportunity to compete for state titles in different events. And, on numerous occasions, plaintiffs were indeed ‘champions,’ finishing first in various events, even sometimes when competing against (Andraya) Yearwood and (Terry) Miller,” the ruling said.

“Plaintiffs simply have not been deprived of a ‘chance to be champions.’” 

The reality: Sport participation is important for all youth, particularly trans and LGBTQ youth

Title IX’s fiftieth anniversary highlighted key successes: since 1972, girls’ sport participation increased 1057% topping 3.4 million in 2019, while women’s college participation increased 194%. This is a huge deal, because sports participation directly correlates with improved physical health, psychological well-being, mental health resilience, academic achievement, economic advancement, and leadership development. These benefits should be available to all youth, no matter their gender, race, sexuality, or income. 

Unfortunately, significant gaps continue to exist for young people of color and LGBTQ youth.  Sport participation rates for LGBTQ youth, particularly trans youth, remain stubbornly low (29% and 12% for LGBTQ girls and trans kids, vs. 68% for all high school students). Trans kids already face higher rates of violence and discrimination, as well as devastatingly high rates of depression, anxiety, and suicidality.

Yet research has found that sport participation fosters psychological well-being for LGBTQ youth. In particular, trans and nonbinary athletes have significantly higher grades and 20 percent lower rates of depressive symptoms than LGBTQ nonathletes. Additionally, LGBTQ athletes who did participate in school had higher rates of self-esteem and feelings of school belonging, and lower rates of depression.

Youth sport has the potential to change kids’ lives, teach them incredible life skills, and help them stay healthy. Women at the forefront of Title IX were fighting for the same right to play sports that trans and other LGBTQ youth now seek. Trans athletes at the youth and high school level just want the same opportunities their cisgender athletes do: to play sports. That’s all. 

The reality: The policies WSPWG champions would harm all girls and women in youth sports

The WSPWG’s proposal stipulates two factors when considering trans athletes’ participation in sports: the onset of puberty and the type of sport (non-contact vs. contact). It says that prior to a trans girl or woman “experiencing any stage of ‘male’ puberty,” the athlete can compete in all sports. However, once the athlete experiences puberty, full-scale participation hinges on them using hormones and/or mitigating the so-called “legacy” advantage of testosterone on their bodies. In those instances, there are options to be “included” in girls and women’s sports, but not in head-to-head competition. 

The WSPWG’s proposal recommends that, if a trans girl has experienced what they call “male puberty” but is not on hormones, the athlete can be included in sports, but not head-to-head competition in contact and non-contact sports. In effect, that isolates trans and nonbinary athletes into their own category, denying them the inclusion and belonging afforded to cis athletes on teams. Isn’t such “inclusion” really just ostracization? 

The focus on puberty as a dividing line for trans participation brings about more problems: If the onset of puberty can occur any time between, say, ages 8-13, per the WSPWG’s recommendations, how will sports teams identify if the athlete has “experienced” puberty? 

By checking, of course. 

The slew of state-level bills seek to verify gender via birth certificate, genital inspection, testosterone level testing, chromosomal testing, and genetic testing. The WSPWG is desperately trying to define gender through physiology, stacking up criteria to draw a firm line between who does and doesn’t belong in the women’s category. The alarming result here is that, as a result, each girl could have her genitalia, genes, and documents inspected just to play on a team of her choosing. These efforts will disproportionately impact Black, Brown, and queer youth who don’t fit a standardized model of femininity, who go through puberty early, or whose bodies mature at a different rate.

The legislative backdrop reinforces the importance of understanding the impending consequences of the WSPWG’s harmful approach. In picking up WSPWG’s language, lawmakers are codifying exclusion supposedly in the name of Title IX and “protecting” cis girls and women. However, no such true threat exists and the impact of these policies will land squarely on the shoulders of all girls and women seeking access to youth sports.

The final point: We must be ready to act when the Biden Title IX guidance drops

The Biden administration will release its proposed rulemaking process sometime in 2023, in an environment that is growing increasingly hostile to trans youth – in January of 2023 alone, eleven states introduced twenty-one bills, many of which would require birth certificates and affidavits for elementary, middle, and high school students to participate on a sports team. In an additional facet of this legislative wave, some state bills are targeting trans boys and men.

At the bare minimum, those proposed rules must extend protections to trans athletes in sports -- and yet, the fight for trans youth (and all youth in sports) will not end there. 

Lawmaking doesn’t end with a final vote or resolution passing. Its reach extends to agencies outlining rulemaking, dictating where and how enforcement takes place and, in this instance, who can participate in sports. 

State legislators are merely following WSPWG’s recommendations to their logical conclusion. While the WSPWG has spoken out in a few instances where they claim state bills mischaracterized their work (in South Carolina and Florida), their research has created a haven for additional anti-LGBTQ groups and far-right groups like Alliance Defending Freedom, the Heritage Foundation, and the Family Policy Alliance to advance their anti-trans legislative agendas.

This politicization of trans girls and women is about to play out in pages and pages of comments submitted to the Department of Education, championed by a group purporting to speak on behalf of cis women. Claiming to protect cis women. However erroneous their claims, the WSPWG is an unfortunately effective rallying point for social anxiety: their resources comfortingly appeal to a “common sense” distillation of a complex topic. Interest groups have an outsized impact on regulatory policy. Their public policy arms are well-connected. They understand where and how to impact the regulatory process. They can mobilize vast networks during the public comment period. Their funding structures are robust. It's to the detriment of Title IX that WSPWG has been a particularly effective interest group.

When the notice of proposed rulemaking is announced, the WSPWG will be ready. Their influence has the power to shape policy that affects everyone – you might not even notice the exclusionary principles until they’re cemented into policy.

The WSPWG’s voices cannot be the ones dominating the airwaves, foreclosing trans kids’ access to sport on the basis of ideology. After all, Title IX is intended to extend opportunity to everyone regardless of sex. Is that really served by creating more principles of exclusion?

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You might be thinking, “What's next? What can I do?” Well, read on!

Educate Yourself: Know the science, know the stories.

Read up on some of the quick-hitting prevailing research on trans kids in sports:

• Transgender Women and Athletes and Elite Sport: A Scientific Review

  • The E-Alliance, an expert panel of cross-disciplinary scholars, conducted this review of literature on trans women athletes’ participation, with a focus on the science of testosterone and its impact on sport performance.

  • They concluded that there is no firm basis available in evidence to indicate that trans women have a consistent and measurable overall performance benefit.

• Fair Play: The Importance of Sports Participation for Trans Youth

  • The Center for American Progress put out this key resource outlining participation trends for cis and trans youth in the U.S.

• The Future of Women’s Sports Includes Transgender Girls and Women

  • Developed by Athlete Ally, Dr. Jaime Schultz, Dr. Libby Sharrow, and Dr. Lindsay Parks-Pieper, this analysis dispels misinformation about trans athletes that has spread in recent media and political debates.

The Power Plays archive has a series of articles from the past few years, to get you up to speed:

• On the 50th anniversary of Title IX, protect trans kids: Period (June 24, 2022)

• Putting trans participation in youth sports in perspective: A new report dives deep into the benefits that inclusive sports policies have for transgender youth (Feb. 8, 2021)

• There is no 'middle ground' on trans inclusion in youth sports: Cis female Olympic champs are lobbying Biden to take away rights from trans girls (Feb. 4, 2021)

Follow and support.

• Transathlete.com -- always, always, always an incredible resource for policy updates, educational resources, taking action, and more.

• Harvard Law School’s LBGTQ+ Advocacy Clinic, working on litigation, legislative and policy advocacy, and public education on behalf of the LGBTQ+ community

• Athlete Ally -- the unfailing LGBTQ sports advocacy organization, working tirelessly to protect LGBTQ athletes in sport through policy, advocacy, research, and resources

• Women’s Sports Foundation (particularly their Chasing Equity Report), as they advance research, advocacy, and programming for all girls and women in sport.

Participate.

When the Biden administration announces their proposed rules, many groups will respond -- including us.

• Educational toolkit: Our partners are developing an educational resource with information on how to submit comments and sample comments language.

  • It will be released when the proposed regulations come out!

• Power Plays community: Lindsay and the Power Plays crew will stay on top of the updates, and we will be organizing ways to come together and fight against these anti-trans laws and regulations. If you have ideas of ways to activate the power of this wonderful community and/or want to help with the organizing it will take, email lindsay@powerplays.news.

1. Becky Pepper-Jackson is a transgender girl in West Virginia who was barred from trying out for the cross-country team. She and her parents have sued the state. The court granted her a preliminary injunction in 2021, but litigation in the case is ongoing.