An executive order by new U.S. President Joe Biden broadens the interpretation of a recent Supreme Court ruling to include protections for transgender athletes.
On his first day in office, Biden issued a wave of executive orders, many departing from the policies of his predecessor, former President Donald Trump. One such order focused on Bostock v. Clayton County, a 2020 Supreme Court decision. In Bostock, the Supreme Court held that the Civil Rights Act of 1964 prevented employers from discriminating against employees on the basis of sexual orientation or gender identity.
According to The Washington Post, President Trump’s administration had held a narrow interpretation of that ruling, applying it only to employment. Biden’s executive order, by contrast, takes a broad interpretation, tying the Bostock ruling to Title IX, the federal statute outlawing discrimination in education.
Biden’s order specifically mentions children and youth sports:
“Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love,” the order reads. “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.”
That’s the only mention of youth sports in the order. It’s not clear yet how the order will specifically affect schools and school sports, which are already governed by national- or state-level policies for transgender athletes.
What’s Already In Place for Transgender Athlete Eligibility?
While LGBTQ advocates have praised the order for protecting transgender athletes and critics have blasted the order for creating what they see as an uneven playing field in girls sports, Biden’s executive order doesn’t appear to affect current national-level policies for transgender athletes at the college or professional levels. The NCAA has had policies in place to govern transgender athlete eligibility for at least a decade. The IOC follows a similar policy, based mostly on testosterone levels, and USA Swimming follows the same policy. Here’s a brief overview of the two policies, which have been in place since well before Biden’s order:
- NCAA: a trans female athlete must complete one full year of testosterone suppression treatment before being eligible to compete on a women’s team in the NCAA. A trans male athlete with the proper medical exemption can compete on a men’s team in the NCAA while receiving testosterone treatment, but also loses their eligibility to compete on a women’s team.
- IOC/USA Swimming: a trans female athlete must declare their gender identity as female and cannot change that for a period of four years. They must then show that their testosterone levels are below a certain threshold for at least one full year before being eligible to compete in women’s events. Testosterone levels must remain below that threshold for the athlete to remain eligible.
The National Federation of State High School Associations (NFHS) doesn’t appear to have one unified policy governing transgender athlete participation, but as of 2017, all but five states had some sort of policy in place.
What Does Biden’s Order Change?
Newsweek reports that Biden’s executive order may mostly affect state laws about transgender athlete participation at the high school level. State laws vary widely in allowing or disallowing transgender athletes to compete, and new laws on transgender athlete participation are still working through the legislative process in many states.
The broader interpretation set by Biden’s executive order “may lead to new legal challenges of laws and policies concerning transgender athletes,” Newsweek reports.
Biden’s executive order also requires heads of federal agencies to review their current policies, revising or suspending policies that are inconsistent with the administration’s broader interpretation of the court ruling.