Jurisprudence

Betsy DeVos May Force High Schools to Discriminate Against Trans Athletes

Secretary of Education Betsy DeVos at a podium.
Secretary of Education Betsy DeVos
Saul Loeb/AFP/Getty Images

The Trump administration may be taking a step toward forcing high schools to discriminate against transgender athletes.

On Thursday, the AP reported that the Department of Education’s Office of Civil Rights has opened an investigation into Connecticut’s equal treatment of transgender athletes. The agency is responding to a complaint filed by the anti-LGBTQ law firm Alliance Defending Freedom on behalf of three cisgender high school girls in Connecticut. ADF alleges that, by allowing transgender athletes to compete with cisgender students, the state is violating Title IX, which forbids discrimination in any federally funded “education program or activity … on the basis of sex.”

Like 19 other states and the District of Columbia, Connecticut prohibits discrimination against transgender students in athletic programs. The state entrusts a private body, the Connecticut Interscholastic Athletic Conference, to regulate high school sports. Among other things, the CIAC coordinates competitions between school athletes across the state.

Virtually every public and private high school in Connecticut pays dues to the organization. To comply with Connecticut’s expansive LGBTQ nondiscrimination laws, the CIAC treats trans students in accordance with their gender identity. Thus, transgender girls who participate in sex-segregated sports compete against other girls, and transgender boys compete against boys.

ADF complained about the competition policy in June. It demanded that the Department of Education direct the CIAC to bar “biological males” from competing “in high school women’s athletic events.” ADF also asked that CIAC be compelled to revise records “of all girls’ athletic competitions from 2017 to present in which any biological male participated” and “remov[e] such individuals from any list of winners.” The group even insisted that the athletic conference “issue a press release naming and giving proper credit” to “every girl who would have been identified as a champion … but for the participation … of any biological male.” (ADF used the term biological male to refer to trans girls, and misgendered trans athletes, throughout its complaint.)

It is not surprising to see ADF concern-trolling for female athletes. The organization is virulently anti-trans and opposes all legal protections for LGBTQ people. But ADF does not always attack LGBTQ people head-on. Instead, it identifies sympathetic plaintiffs who claim that inclusive policies somehow harm their rights. For instance, ADF has repeatedly sued school districts that adopt trans-friendly policies, arguing that trans students should not be allowed to use the same school bathroom as their peers.

In these cases, the organization brings a lawsuit on behalf of cisgender students who claim to be offended by the presence of trans classmates. The tactic has not worked so far in bathroom cases, in large part because the plaintiffs are unable to articulate an injury beyond their personal discomfort with trans people. But ADF seems to think it will have more luck representing cisgender athletes who assert a more concrete injury. The group alleges that trans competitors have an unfair advantage and consistently beat cisgender students, denying them “the attention of college recruiters and resulting scholarships.”

There is a reason so many states have adopted inclusive athletics policies: They pose no threat to cisgender students. Despite ADF’s exhortations, there is simply no evidence that transgender students are limiting their peers’ ability to compete and win. Trans athletes are not destroying women’s sports. One of ADF’s clients in the Connecticut case, Selina Soule, illustrates this point. Soule is angry that two trans students beat her in Connecticut’s 2019 girls indoor track championship this year. But Soule did not place third—she placed eighth. She is less a victim of discrimination than a sore loser.

Still, the Department of Education appears to be taking ADF’s latest complaint seriously.. According to the Washington Blade’s Chris Johnson, the agency has “determined that it has jurisdiction” over the claims. That means it believes ADF has stated a plausible violation of Title IX. The agency will now investigate, in its own words, whether the CIAC “denied equal athletic benefits and opportunities to girls” by prohibiting trans discrimination in high school competitions. Leaked emails from the department show that officials rushed to take up ADF’s complaint before they developed a legal theory to justify their actions.

A favorable outcome for ADF would represent a full reversal of the federal government’s previous interpretation of Title IX’s protections. Just four years ago, under the Obama administration, the Department of Education took the position that Title IX forbids federally funded schools—and, by extension, bodies like the CIAC—from discriminating against trans students.

Now, under Secretary Betsy DeVos, the agency appears poised to flip its position entirely. Its Office of Civil Rights already rejects complaints from transgender students who face discrimination because of their gender identity, declaring that Title IX offers no protection to trans students. It seems the agency could soon decide that federal law not only allows discrimination against trans high school athletes but actually requires it.

By doing so, the department would effectively announce that the laws of 20 states and D.C. are illegal. It would also force public schools—or, at a minimum, the bodies that govern school athletics—to segregate trans athletes from their peers. These athletes would be obligated to compete as the wrong gender or quit sports altogether. Schools that maintained trans-friendly policies would risk losing their federal funding.

Many Republicans accused the Obama administration of rewriting Title IX by reading “sex discrimination” to encompass discrimination against trans students. (In fact, that interpretation grew out of a judicial consensus that anti-trans discrimination is fundamentally rooted in considerations of sex.) The Trump administration responded by rolling back Obama-era rules safeguarding the rights of transgender people, claiming that the matter was best left to the states. It is now contemplating its own radical rewrite of Title IX to override states’ choices and create a federal rule excluding trans athletes from equal participation in high school sports.

The Supreme Court will decide next year whether sex discrimination includes anti-trans discrimination. Even if it unjustly excludes trans people from the protections of civil rights law, though, the court will not greenlight ADF’s risible theory of Title IX. (Any position adopted by the Department of Education will still be subject to challenge in federal court.) There is no reasonable interpretation of sex discrimination that somehow bars schools from letting trans athletes compete alongside their cisgender peers. ADF isn’t asking for sex equality. It’s demanding that schools mistreat trans athletes on the basis of sex stereotypes that Title IX was designed to eradicate.

This article has been updated to note the Department of Education’s rush to take up ADF’s complaint.