Indiana says trans girls can’t play on schoolgirl sports teams

Indiana has joined a host of states in enacting laws banning transgender athletes from participating in sports related to their gender identity, and has enacted legislation, over the governor’s veto, banning transgender girls from competing on their schools’ girls’ sports teams.

The question of whether transgender athletes should be allowed to compete in sports of their gender identity has been called a matter of competitive fairness and science. That year, a transgender woman won the NCAA swimming title, becoming the first openly transgender woman to win a championship. Politicians and sanctions groups in sport have failed to address the issue of how transgender athletes can compete respectfully. This issue has passed to the courts.

In addition to Indiana, states that have laws prohibiting transgender students from participating in sports related to their gender identity include:

  • Alabama

  • Arkansas

  • Florida

  • Georgia

  • Idaho

  • Iowa

  • Mississippi

  • Montana

  • South Carolina

  • South Dakota

  • Tennessee

  • Texas

  • West Virginia

  • Utah

Other states have enacted similar laws, but they have not yet taken effect or been vetoed by the state governor. These states include:

  • Arizona

  • Kansas

  • Louisiana

  • Missouri

  • North Dakota

  • Oklahoma

As states continue to push for this type of legislation, human rights groups like the American Civil Liberties Union (ACLU) have filed lawsuits to test the constitutionality of such laws. For example, since the passage of Indiana law, the Indiana ACLU has filed a federal lawsuit seeking to allow a 10-year-old transgender girl to compete on her school’s girls’ softball team. In West Virginia, a federal court prevented the state from enforcing a law banning transgender girls and women from participating in school sports, ruling in favor of an 11-year-old transgender girl competing for cross-country and athletics of the girls at her school wanted to compete in teams.

The US Supreme Court has not heard a case specifically regarding transgender student athletes. However, the court ruled that Bostock vs. Clayton County, Georgia, 140 S.Ct. 1731 (2020), the term “gender” includes a person’s “gender identity” in discrimination cases falling under Title VII of the Civil Rights Act. The Court further ruled that “the prohibition on sex discrimination in Title VII includes a prohibition on discrimination on the basis of sexual orientation and gender identity.” The Supreme Court clarified that this language only applies to Title VII and not Title IX of the Educational Amendments and school sport.

K-12 institutions and universities must monitor this litigation as it unfolds. As courts across the United States decide either for or against student athletes, it is important that schools update their policies regarding transgender athletes.

Jackson Lewis PC © 2022National Law Review, Volume XII, Number 151

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