Hirsha Venkataraman
It’s 2023, and here in the United States, we–or at least some of us–still can’t decide whether or not we want to be on the right side of history. The Supreme Court has gutted abortion rights that existed for decades and allowed a business owner to discriminate against a homosexual couple due to “free exercise of religion.” Will the Court soon be allowing far-right religious zealots to dictate how we treat some of our most vulnerable and marginalized? I am talking about the proliferation of anti-trans legislation sweeping our nation, particularly against transgender athletes and, even more specifically, youth transgender female athletes.
After Republicans put on a disastrous showing in the 2022 midterm elections, they have turned to desperation. What do cynical politicians do when they fail on policy and desperately need to rile up their base? They create a scapegoat, and transgender athletes, predominantly transgender female athletes, are now the target of choice. Undoubtedly, GOP candidates will employ this strategy inside and outside of the 2024 GOP presidential debates, with one candidate already having referenced it as “the women’s issue of our time” and going as far as falsely attributing suicide among cisgender girls to the mere presence of transgender girls in locker rooms. Other GOP candidates have adopted similarly hateful rhetoric, railing against gender-affirming care and floating federal bans against such care. Transgender youth are now faced with a matter of life and death as a result, with the risk of suicide looming over those who are unable to receive the care they need. Our country must defend what is right. We must start by allowing transgender athletes to play on teams in accordance with their gender identity.
It speaks volumes about the current state of the U.S. when the population targeted for the sake of cheap political points happens to be already marginalized and historically discriminated against. However, that has not stopped legislators of over 20 states from banning transgender athletes from participating in accordance with their gender identity. What makes this situation a travesty and exposes the true motivation behind this wave of legislation is that, in almost every instance, bill sponsors cannot cite a single instance of transgender female athlete participation causing a problem.
This means only one thing: the bans were introduced or enacted not for the purpose of saving women’s sports, as Tennessee Governor Bill Lee disparagingly claimed back in February 2021, but solely to demonize transgender female athletes for existing, all for a few more votes under the guise of “fairness.” It is worth noting that presidential hopeful and longtime opponent of LGBTQ+ rights, Ron DeSantis, signed into law a bill barring transgender females from playing on public school teams that he claims are solely intended for student athletes biologically born as female on the first day of Pride Month in 2021. He was quoted as saying, “In Florida, girls are going to play girls [sic] sports and boys are going to play boys [sic] sports.” (I accept, Ron, but maybe not in the way you’re thinking).
The fervor came to a boiling point after the cases of Soule v. Connecticut Association of Schools and Hecox v. Little, each concerning transgender girls looking to compete as the gender with which they identify, came into the national spotlight. The efforts led against the respective trans-inclusionary policy in Connecticut and in support of the transgender athlete ban in Idaho were spearheaded by none other than Alliance Defending Freedom (ADF), the far-right Christian fundamentalist legal advocacy organization that has long been fighting against the LGBTQ+ community. Categorized as a hate group by the Southern Poverty Law Center, ADF has contended that LGBTQ people are more likely to engage in pedophilia, continues to constantly misgender transgender people, and has been the architect of legislation upon which anti-trans bans across the nation have been modeled.
ADF is using these cases, along with many others, to scare the public into thinking that transgender female athletes do not belong on teams or are in competition with cisgender female athletes–and that ADF’s efforts are in place for the purpose of protection and fairness. However, given the complete lack of evidence of any negative impacts on girls’ sports (with existing evidence proving the contrary) and the rarity of transgender participation in sports generally (with only roughly 50 transgender athletes out of the total 200,000 competing in NCAA women’s sports), ADF’s efforts are clearly nothing more than fearmongering propaganda and should be ignored by legislators, leaders, and citizens.
The plaintiffs in Soule, four cisgender female athletes, alleged that the Connecticut Interscholastic Athletic Conference (“CIAC”) policy permitting high school students to compete on gender-specific athletic teams consistent with their gender identity was in violation of Title IX of the Education Amendments of 1972 as well as a failure to provide equal competitive opportunities for girls. The District Court of Connecticut dismissed both claims. The Second Circuit Court of Appeals affirmed the lower court’s holding while additionally citing the Supreme Court’s decision in Bostock v. Clayton County to conclude that, based on the Court’s interpretation of Title VII, the CIAC policy that prohibits discrimination based on a student’s transgender status does not fall “within the scope of Title IX’s proscriptions.”
Conversely, Hecox concerned a challenge to Idaho law H.B. (“House Bill”) 500, otherwise known as the “Fairness in Women’s Sports Act,” which banned transgender female athletes (and many intersex athletes) from competing in accordance with their gender identity. Specifically, the plaintiff, Lindsay Hecox, alleged violations under the Equal Protection Clause, Due Process Clause, and Title IX and requested a preliminary injunction of the bill. The District Court of Idaho granted the preliminary injunction, and the Ninth Circuit Court of Appeals affirmed, holding that Hecox “was likely to succeed on the merits of her Equal Protection Claim.”
These cases are only two of the many challenges set in motion as a result of transgender athlete bans, and litigation is in progress to fight many of them. Perhaps one sign of hope came (somewhat unexpectedly) from the Supreme Court, which on April 6, 2023, rejected an effort (temporarily, for now) by the West Virginia legislature to ban transgender girls from playing on girls’ sports teams. The plaintiff contended, similar to Hecox, that the West Virginia law, H.B. 3293, violated her constitutional right to equal protection under the law. This holding may represent a light at the end of a very long, dark tunnel, but only if a permanent solution can be litigated by way of the Fourteenth Amendment or Title IX. Until then, there will likely continue to be efforts by both individual state legislatures and the currently Republican-led House of Representatives to push harmful, discriminatory legislation at the state and federal levels.
The reality is that we must not only embrace inclusion of transgender athletes in youth sports but also fight aggressively against anti-trans legislation so that transgender youth can avoid the trauma of being needlessly ostracized from an early age. Time and time again, including but not limited to the periods of slavery, racial segregation, absence of women’s suffrage, and the current barriers to the well-being of the LGBTQ+ community, the United States has been faced with civil rights issues, and discrimination has run rampant based on falsehoods and stereotypes. If we allow ourselves to succumb to baseless claims about the transgender population, we will be doomed to repeat our mistakes unnecessarily.
It is a matter of life and death. Exclusionary measures only further the existing harms suffered by transgender children, such as increased suicidality, lower self-esteem, and decreased well-being, according to the Center for American Progress. By allowing transgender female athletes to compete and by fostering welcoming and inclusive environments, we not only benefit trans female athletes but girls’ sports in general. Where inclusive policies exist, participation increases in girls’ sports, and trans athletes experience lower rates of depressive symptoms, higher levels of psychological well-being, and are less likely to have suicidal thoughts.
The conclusion is simple: by discriminating against transgender youth athletes, we are still discriminating against youth. Can we live with that? Have we come to a point where we do not consider transgender youth as part of American society? Are they not owed the same rights as everyone else? Are we so afraid of even trying to understand their plight that we would rather ignore it and put these kids in a corner? I hope not. Transgender children, especially girls in sports, have suffered the most from these bans–and, given the evidence illustrating the struggles they already experience, we do not need to make things worse.
Now is the time to make things right, and there are many ways we can join the fight. These include contacting our legislators directly and voicing our concerns, organizing our communities, showing up to vote when legislators choose to be complacent, volunteering with groups supporting trans rights, and communicating with (and especially listening to) friends and family who may not be privy to the issue or may simply be in denial of the direness of the situation. These steps will help to ensure that accurate information is provided to voters despite the loudness of misinformation being shouted by opponents of trans rights. There is no better time than now.
Hirsha Venkataraman (CUNY Law ‘23 ) is a Reproductive Justice Fellow at If/When/How.