Joe Biden’s first day in office delivered an incremental victory for transgender athletes seeking to participate as their identified gender in high school and college sports.
Among the flurry of executive orders signed on Wednesday, Biden called on all federal agencies to enforce a US supreme court decision from last year that expanded the definition of sex discrimination to include discrimination based on sexual orientation as well as gender identity – with language that explicitly referenced the arena of high school and college sports.
“Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports,” the directive states, adding that the incoming administration is committed to “prevent and combat discrimination on the basis of gender identity or sexual orientation”.
The order, which calls for a broader application of Donald Trump-appointed justice Neil Gorsuch’s majority opinion in last year’s Bostock v Clayton county ruling, mandates that every agency must act to ensure the enforcement of this new rule within 100 days of 20 January.
Crucially, it states the Bostock decision should also apply to Title IX, the federal law that prohibits discrimination in federally funded schools, in keeping with Biden campaign promise that his Department of Education would investigate and address any violations of transgender students’ rights. States that fail to comply would risk legal action or the loss of federal education funding.
Last year, bills to restrict transgender athletes’ participation to their sex recorded at birth were introduced in 17 different US statehouses.
In Idaho, a law signed in March by Republican governor Brad Little became the nation’s first to prohibit transgender students who identify as female from playing on female teams sponsored by public schools, colleges and universities. The legislation was overwhelmingly supported by the state’s Republican-dominated house and the Trump administration but blocked from implementation by a federal judge while a legal challenge by the American Civil Liberties Union and Legal Voice proceeds.
Backers said the law, called the Fairness in Women’s Sports Act, is necessary because transgender female athletes have physical advantages.
Opponents, which include health care groups and human rights advocates, claim the restrictions harm the emotional and physical well-being of transgender youth. Similar laws in other states have been funded by advocacy groups like Alliance Defending Freedom, a Southern Poverty Law Center-designated hate group whose other legal work revolves around attacking reproductive rights, gay marriage and other LGBTQ+ rights.
In Connecticut, the Trump administration intervened in support of a lawsuit filed by several non-transgender girls in Connecticut who were seeking to block a state policy that allows transgender athletes to compete in line with their identity. The plaintiffs argued transgender female runners had an unfair physical advantage.
But the two transgender runners at the center of that case said in court filings that being able to run against girls was central to their well-being.
“Running has been so important for my identity, my growth as a person, and my ability to survive in a world that discriminates against me,” Andraya Yearwood wrote to the court. “I am thankful that I live in Connecticut where I can be treated as a girl in all aspects of life and not face discrimination at school.”
An early test case of Biden’s order may come in Montana, where on Thursday the state’s house judiciary commission voted by a 11-8 margin to advance a bill to the house floor that would prohibit transgender students from participating on school sports teams of the gender with which they identify.
State representative Robert Farris-Olsen, who joined all committee Democrats in opposition, said that passing the bill would violate the right to privacy enshrined in the state constitution and could mean Montana would lose federal education funding, which amounted to $484m in the last fiscal year.
“Not only do we run afoul of the US and Montana constitutions, we also potentially risk all of our federal funding for education in Montana by passing this law,” Farris-Olsen said.
Added Chase Strangio, the ACLU’s deputy director for transgender justice: “Right now lawmakers are not only voting on trans lives but threatening the state’s federal funding.”