Today, Explained - Can Title IX protect trans athletes?

Episode Date: April 27, 2023

President Biden hopes so. His administration is preparing to roll out new rules that would counter state and local bans aimed at keeping transgender youth out of sports. ESPN’s Katie Barnes explains. This episode was produced by Hady Mawajdeh, edited by Matt Collette, fact-checked by Avishay Artsy and Laura Bullard, engineered by Paul Robert Mounsey and Michael Raphael, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained  Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts  Learn more about your ad choices. Visit podcastchoices.com/adchoices

It feels like every month there's another state trying to ban trans athletes from participating in school sports. This month, it's North Carolina. The bill forces athletes to compete with their biological sex and not their gender identity. This would apply to middle school, high school, and college. But this month, someone else walked directly into this hotly contested debate. A new plan proposed by the president would prevent states from banning transgender athletes in public schools. The Biden administration wants to bring some clarity to the chaos that is the trans athletes debate in America. We're going to try and figure out if that's even possible on Today Explained. They deserve not to live in fear of losing a scholarship because a biological male caused them to lose it. They are in a competition

to see who has the least tolerance for the existence of trans students. Get groceries delivered across the GTA from Real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit Superstore.ca to get started. Today, Explained's Sean Ramos-Firm here with Katie Barnes from ESPN to talk about the hot mess that is the debate over trans athletes in America. We started with just what is going on with this issue right now. The short answer to that question is a lot is going on right now. The more complicated answer is that we're in the middle of a seriously intense shifting policy landscape, and those shifts are happening

at an international level. The international governing body over track and field announcing a ban that prevents transgender athletes from participating in female events after going through male puberty. At a national level. So the Republican-led House of Representatives passed a bill today banning transgender women from competing in school sports. And at a local level.

Senate Bill 15, filed by Republican Mays Middleton of Galveston, would require college athletes to play on sports teams based on their gender assigned at birth. And they're all different conversations about different types of sports. And so at the state level, in the last three years, really, if we go back to 2020, we've seen about 20 states pass restrictions of some kind when it comes to transgender athletes participating in school and collegiate sports. Additionally, the House of Representatives recently passed a bill out of its chamber that would restrict transgender girls and women from participating in girls and women's sports at the school level. And we're also seeing the Biden administration come out with a proposed regulatory shift in regards to Title IX and how Title IX applies to the question of transgender athletes participating in schools and the collegiate sports. This is without a, a partisan issue.

Transgender athletes, and in particular, transgender girls and women participating in girls and women's sports, is an animating issue for conservatives in the United States and certainly for the Republican Party. House Republicans pledged before the last election their commitment to America to protect women and girls in sports. Today, we kept that promise. So the House passed House Resolution 734, again, along party lines. And it's a very simple bill that would restrict transgender girls and women from participating in girls' and women's sports. Radical interpretations of Title IX have allowed men to slowly encroach more and more on women's competitions. American women and girls deserve better than what Democrats are doing to them.

At its simplest distillation, basically what the bill says is that for sports purposes, sex will be determined by your reproductive biology and your genetics at birth. So even if you change your birth certificate, that doesn't necessarily matter. And it mirrors a lot of what we've seen from a legislative perspective at the state level, using similar language, similar ways to restrict participation, and then further restrict the category of women's sports by saying that anyone who is not designated or assigned female at birth is not eligible for that category. And will Resolution 734 go anywhere with Democrats in control of the Senate and the White House? Likely no, for the reason that you alluded to in your question. Biden would veto

such legislation more than likely, and the Senate is unlikely to take it up for as long as the Democrats hold control of the chamber. And while we're on President Biden, tell us what he just proposed recently. What has happened is that President Biden and the Department of Education has proposed a regulatory change in how Title IX is regulated. The proposal would mean any blanket policy prohibiting transgender athletes from competing would violate Title IX. That's the law that prohibits sex-based discrimination by schools that receive government funding. Title IX, despite being known for being the legislation and the law that caused the creation of women's sports, actually doesn't say anything about sports in the law. Yeah, it's only 37 words long. No person in the United States shall, on the basis of sex, be excluded from participation in, be denied

the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance. And the activities part is where we get to sports. And so after that law was passed in 1972, then there was a series of hearings and regulatory decisions about, okay, what is this actually going to look like? And that happened in 1975, where the then Department of Education, which was called something different at that time, went through the process of creating these regulations for what Title IX practically is going to look like from an implementation perspective. And so what the Biden administration is proposing is a shift in those regulations in terms of how Title IX will be implemented and how education institutions and schools and those who are held

accountable against Title IX will be evaluated in terms of whether or not they are in compliance. Practically, what it means is that the Biden administration, from the regulatory proposal that they have publicly released, is that these categorical bans that exist in a number of these states and these broad restrictions that exist in a number of these states are not something that the administration believes is allowable under Title IX. The Education Department said very clearly yesterday that these blanket bans that we're seeing, like the one in Kansas, violate Title IX under this proposal. And so the legislation itself, in terms of how they restrict transgender athletes isn't just talking

about high school. It's not just talking about Division I athletics. The overwhelming majority of these laws restrict transgender girls, and in some cases, transgender boys, from participating in sports in accordance to their gender identity all the way down to elementary school and all the way up to intramural level college participation. So, functionally what that means, what the Biden administration is saying is that seven-year-old soccer, second grade, third grade soccer, is not the same as Division I competitive swimming, and that's also not the same as club hockey at your college. And that's also not the same as women's intramural flag football. The idea that was going on, you know,

in some states, I won't get into the politics of it, but in some states, it's just, it's outrageous. And I think it's immoral. Let's talk about this practically for a second here, Katie. So this Biden rule, how would it apply to, say, a, I don't know, a seven-year-old trans girl who wants to swim in her elementary school swim meet? The Biden regulations would say that if a state is passing legislation that would try to restrict her participation, it would likely not be in compliance with the regulation. Same thing if that was happening at a school level as well. If a school was enacting a rule that would restrict that participation, it wouldn't comply with the policy. Which means that they would be risking their funding. More than likely, yes. Okay. Let's up the ante here. How about a 17-year-old trans teenager who is really good at running the 100 meter?

From what I was able to glean from these proposed regulations, if that athlete was trying to compete in a state that had restrictive policies or the school was trying to restrict that athlete from participating on the girls track team, they would have to make a compelling argument to the Department of Education for why that athlete should not be allowed to compete beyond simply, well, they're assigned male at birth and therefore have an advantage. So at that level, it gets kind of case by case? I would say so. But I also think that the administration is not necessarily proposing

a rule that says, well, each individual athlete is going to go through this regulatory process. Rather, it is from a regulatory standpoint is saying, here's the kind of restrictions that will not pass muster. If you are going to restrict an athlete, here are the types of things that we will consider. And then you have to make the case. But then they also go on to say, but you can't just say because they're trans. It has to be more compelling than that. It sounds like the Biden administration is trying to find some nuance

in a debate that doesn't have a lot of nuance. That is correct. And that's all over the document. And I think it's worth saying that, again, you know, I talked about how Title IX is 37 words. The proposal, like the actual regulation from the Biden administration is only a few sentences. But the document explaining the context for that change and the thought process and also the regulatory process that this proposal underwent is 116 pages long. Oh, what? That feels like cheating. It was, honestly, it was quite a surprise to me too. So it's a lot of information.

And in there, in that document, is a lot of wrestling with, here's what the International Olympic Committee is proposing for its elite athletes. Here's what our United States national governing bodies are doing. And they are making a distinction between their elite level athletes and their participatory younger athletes. And so specifically, the proposed regulations pointed to USA Gymnastics, USA Volleyball as examples of national governing bodies that are making these distinctions as well. And so it's a very nuanced, heavy document trying to thread a very small, very specific needle in a politically charged conversation.

So this Biden Title IX adjustment, is it happening or is it a proposal? When does this become real, if ever? So it's a proposal in that it is now open for public comment and will remain open for public comment for the next few weeks. But then once that public comment is closed, they will finalize the regulation and it will go into effect. More with Katie in a minute on Today Explained. To be continued... management software designed to help you save time and put money back in your pocket. Ramp says they give finance teams unprecedented control and insight into company spend. With Ramp, you're able to issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the end of every

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with iGaming Ontario. Today Explained, we are back with Katie Barnes from ESPN talking about trans athletes in American sports. And Katie, the last time we covered this issue in 2021, the vibes were that there actually weren't very many trans athletes in American sports. Has that changed in the past two years? Not really. There aren't that many. Still? Still, yeah. The reality is that very few young people identify as transgender, although that number is, of course, rising,

because of young people's ability to access language and discover their identities in a different way than certainly I had access to growing up in rural Indiana in the 90s. And so, despite, I think, all of this general panicky feeling about transgender athletes sort of dominating women's sports in general, the reality is that there are very few competing, and there are even fewer competing with championship-level success. And so one of the examples of that is actually out of Utah. In 2022, the governor of Utah vetoed a bill that would have restricted transgender girls from participating in girls and women's sports in that state at the school level. If you have not spent time with transgender youth, then I would encourage you to pause on this issue. And the reason given by the governor was that at that moment, only four athletes competing in the state at that time

were known to be trans, and only one of them was a transgender girl. These kids are, they're just trying to stay alive. And so there are these examples of singular or a few athletes in these states, but the AP did a story asking the legislators who were proposing these bills to identify athletes in their states who are trans and who are competing and causing a problem in women's sports, so to speak. And the overwhelming majority of those legislators couldn't name a local case. And so, the reality is that when we talk about this issue, there are a handful of names that come up consistently. Leah Thomas, right, the University of Pennsylvania swimmer.

Trans people don't transition for athletics. We transition to be happy and authentic and our true selves. Transitioning to get an advantage is not something that ever factors into our decisions. Stacey Telfer, who won a Division II National Championship in the 400-meter hurdles in 2019, who ran at Franklin Pierce University. I'm a female athlete, so I compete in female sports.

The trans aspect of it is just used to define something that people cannot understand. However, at the end of the day, we are women. We are female athletes as well, and we should be treated and seen as such. And then at the high school level, you have like Andrea Yearwood and Terry Miller, who are transgender girls from Connecticut, who won a number of state championships in that state. They've both started hormone therapy and say that for the most part, they've been welcomed by friends, family, coaches, and administrators with open arms.

But there is some backlash from parents and students. Two petitions were even started in an attempt to change the current rule of the state's governing body of interscholastic sports. And Mac Beggs, a transgender boy from Texas who is a wrestler and won a girls state championship because of a specific circumstance of overlapping policies that required him to wrestle in the girls wrestling category, even though most states don't actually have a girls wrestling category. My goal was always just to make it to state. Like, I never thought that I would actually win it. And I worked hard for it. And so those are kind of the names that come up a lot.

And there are a couple of others. But there isn't a huge number of athletes competing. And in fact, through young transgender people speaking out about this legislation, we've heard a number of different stories of transgender girls whose athletic experience reflects, frankly, something of my own growing up in Indiana playing basketball. I was a perfectly serviceable varsity point guard, but that was the extent of my athletic experience. And so, an example of that is Becky Pepper Jackson, who is the plaintiff in the West Virginia case currently being heard by the Fourth Circuit of Appeals.

And she's 12 years old and is a cross-country runner, and her whole family runs, and she just wants to run with her friends in middle school. That's it. 12-year-old Becky Pepper Jackson can continue to compete on her school's track and field team while her lawsuit against West Virginia's ban

on trans athletes competing on girls teams winds its way through the court. The Supreme Court declined to intervene in the case at this point, so Becky can continue to compete for now. So I would say that for every, like, Leah Thomas example, there are a number of athletes who have been competing and participating in sports largely without incident because they don't win in a controversial manner in their category, and so therefore are nationally uninteresting. Right. But I imagine some Americans take issue with a trans woman winning a competitive college-level

swim meet. Is that basically how this breaks down in terms of popular opinion? In my professional experience, I'm inclined to say you're likely correct. However, the polling that we have doesn't make that distinction. And frankly, the legislation

doesn't make that distinction either. So there's an NPR poll that came out last year that said that two-thirds, roughly, of Americans are opposed to allowing transgender women and girls to compete on teams that align with their gender identities. No matter what cohort? What age group? That question wasn't asked. Aha!

Because largely, this issue isn't necessarily approached with that level of nuance. is, is that as Americans, we are having many different conversations at the same time and making no distinction in our language. And I think that's one of the reasons why the Biden-proposed regulatory change is difficult for a lot of people to grasp, because it does do that. It tries very hard to grapple with the different questions and how they apply to different levels of sport and what could be allowed at the high school and collegiate competitive level versus what should not be allowed at second grade soccer level. But the current legislation as it stands does not make that distinction. In fact, it goes out of its way to not make that distinction.

And what happens if you just blanket ban trans kids from participating at these insignificant levels? They don't play sports. It's part of the fabric of the American dream that someone can grow up playing basketball on their park court, get discovered, and make it big in the NBA. We love those stories. And so there's a part of the youth sports apparatus that drives that desire to get scholarships, to go pro, to be an Olympian. But the reality is very few of us will ever make it that far, right? But also, sports are skills. You have to be good at the sport to become an Olympian. One does not become an Olympian simply because they were assigned male at birth. And so these restrictions, when enacted at a really low level, including elementary school, middle school, what that does just removes the ability for that athlete to have an affirming experience in just normal sports, which again, is the experience for the overwhelming majority of the population. And I don't mean like 65, 75%,

I mean 96% of those who play up to high school sports do not go on to continue to compete in college. So by enacting these restrictions in such a broad way, it really is limiting the sporting opportunity for really young kids and to have a typical sports experience that the overwhelming majority of the American public would have access to. So do you think this new rule proposal from the Biden administration that attempts to find some nuance in this debate will last? I think it depends on how it is discussed and how it's communicated. And also, you know, whether or not the Biden administration gets sued. The last time an administration tried to articulate a policy for transgender inclusion in schools broadly, which happened under the Obama administration, 23 states sued that administration over it. So how this plays out,

I think, really remains to be seen. But I will say I think the regulations are certainly more nuanced than has been discussed in general. Katie Barnes, ESPN. They're the author of a forthcoming book called Fair Play, How Sports Shape the Gender Debates. It's coming out in September. Our program today was produced by Hadi Mawagdi. It was edited by Matthew Collette. Fact-checked by Avishai Artsy and Laura Bullard. And we were mixed by Paul Robert Mounsey and Michael Raphael.

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