While the U.S. Supreme Court considers a case on the potential extension of Title VII protections against discrimination based upon “sex” to include discrimination based on gender identity, several states have introduced legislation to require transgender student-athletes at the elementary and secondary school levels to compete only in their sex assigned at birth, not based on their gender identity.

While more than a third of states allow transgender students to compete on teams based on their gender identity, legislators in several states (including Georgia, Idaho, Missouri, New Hampshire, Tennessee, and Washington) are attempting to end this personal right of choice. Legislators in these states have introduced (or pre-filed proposed legislation for their upcoming state legislative sessions) that would restrict students from being able to compete based on their gender identity.

For example, the proposed Tennessee legislation (House Bill 1572) provides that students in elementary and secondary schools may only compete “based on the athlete’s biological sex as indicated on the athlete’s original birth certificate.”

Any birth certificate that has been revised or amended regarding the athlete’s sex will not be accepted. A violation can result in the loss of public funds from state or local government. Also, a principal or school administrator may be fired and fined up to $10,000 as a civil penalty for violating the law.

The bill’s sponsor, Representative Bruce Griffey, said, “I’m just trying to maintain fairness, I don’t want girls to be at a disadvantage.”

In Washington, the proposed legislation would overturn the state’s policy of allowing students to participate in sports “consistent with their gender identity.”

State Representative Brad Klippert intends to introduce the legislation aimed at trans-female athletes (MTF) by requiring school districts to “prohibit male students from competing with and against female students in athletic activities with separate classifications for male and female students if the athletic activity is (a) intended for female students; and (b) an individual competition sport.” A “male student” is defined as a student whose assigned sex at birth was male.

The push for this type of legislation reflects a growing concern that certain transgender protections have resulted in unfair competition in women’s sports. Several legislators suggested that transgender female athletes have natural physical advantages over biological females, including differences in muscle mass, bone strength, lung capacity, and heart size. While bill sponsors have had difficulty finding specific examples to support this position, several referred to a Connecticut state girls indoor track championship where two transgender female high-school students won in dash events.

While competition at the high school level is not covered by specific NCAA legislation, a review of the working model introduced by the NCAA can provide guidance. The NCAA has confronted the fair competition issues with a formal transgender policy. The NCAA policy on participation of transgender student-athletes is as follows:

  • A trans male (FTM) student-athlete who has received a medical exception for treatment with testosterone, for purposes of NCAA and competition may compete on a men’s team, but is no longer eligible to compete on a women’s team without changing that team status to a mixed team. A trans male (FTM) student-athlete who is not taking testosterone related to gender transition may participate on a men’s or women’s team.
  • A trans female (MTF) student-athlete being treated with testosterone suppression medication may continue to compete on a men’s team but may not compete on a women’s team without changing it to a mixed team status until completing one calendar year of testosterone suppression treatment. A trans female (MTF) transgender student-athlete who is not taking hormone treatments related to gender transition may not compete on a women’s team.