New President, New Interpretation On Transgender Athlete Access

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.

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Aaron
3 months ago

I’ve been to gay rights rallies, I believe insurance should cover gender conversion, I recognize the fact that biological gender is not as simple as some people would have you believe. But I do not think you can allow transgendered athletes to compete against women without considering the possibility that they have unfair advantages.

steve
Reply to  Aaron
3 months ago

biological gender is as simple as it sounds. You are or you are not. There is no grey area . How you feel or identify is not biology. Insurance coverage for conversions say it all . Please lets keep our sport out of the “if it feels good do it arena” allow our athletes to compete .

DistanceSwimmer
Reply to  steve
3 months ago

Intersex individuals exist.

Swammer12
Reply to  DistanceSwimmer
3 months ago

.01% people being interesex is not a great argument for changes that will negatively effect 49.99% of people.

Michael
Reply to  Swammer12
3 months ago

Uhh, 99.9%

Irish Ringer
Reply to  Swammer12
3 months ago

Actually about .001%, but 100% agree with your sentiment.

Harold
Reply to  DistanceSwimmer
3 months ago

Which would be a good argument if this only covered those individuals.

Hswimmer
Reply to  steve
3 months ago

Facts

Science
Reply to  steve
3 months ago

Everyone loves science, till it’s time to biological gender.

SWIMGUY12345
Reply to  steve
3 months ago

I assume you’re talking about biological sex on the chromosomal level. Male being XY and female being XX. But actually, there is a grey area. It’s called intersex and there are multiple conditions where people have extra or missing chromosomes.

Turner Syndrome (45, X), Klinefelter Syndrome (47, XXY), or having two YY chromosomes (47, XYY). So before you open your mouth and spew information about gender or sex, things you clearly know nothing about, go learn.

Last edited 3 months ago by SWIMGUY12345
Michael
Reply to  SWIMGUY12345
3 months ago

Please don’t be foolish and paint all these cases with the 0.01% of folks born like this. Come on, be real.

WRLO56
Reply to  SWIMGUY12345
3 months ago

From what I can see, Turner Syndrome is exclusive to females, and Klinefelter Syndrome is exclusive to males. Neither chromosomal abnormality appears to have anything to do with gender identity; both have undesired signs and symptoms.

Is there a chromosomal abnormality that is identified with gender dysphoria or intersexuality? Is there any evidence that intersexuality is chromosomal, as opposed to perhaps psychiatric, in nature?

Steve Nolan
Reply to  steve
3 months ago

oh no, we have a new, even worse Steve.

Irish Ringer
Reply to  Steve Nolan
3 months ago

I wouldn’t go that far 😉

Troll Longhorn
Reply to  Steve Nolan
3 months ago

Steve 2.0

Swimmer1
Reply to  steve
3 months ago

1.7% of people are some degree of intersex. That’s a lot of people for no grey area

Irish Ringer
Reply to  Swimmer1
3 months ago

Please refer to this which says the amount is closer to .018 than than Fausto-Sterling s estimate of 1.7%.
https://pubmed.ncbi.nlm.nih.gov/12476264/

In addition a study from 2019 put that number at about 1 in 1000, so much lower than 1.7%.

https://www.webmd.com/parenting/baby/news/20190503/study-about-1-in-1000-babies-born-intersex

WRLO56
Reply to  Irish Ringer
3 months ago

The WebMD article isn’t even about transgender children; it’s about babies with malformed genitalia whose sex is misidentified at birth.

Magda
Reply to  WRLO56
3 months ago

Which is why it was brought up in a conversation about people who are INTERSEX 🤦🏻‍♀️ Intersex doesn’t mean trans. Being intersex is about sex, not gender.

TINY HANDS
Reply to  steve
3 months ago

“biological gender is as simple as it sounds. You are or you are not. There is no grey area”

This is flat out false. I’m not saying this to be a jerk, but you clearly are not well-informed when it comes to the biochemical and genetic underpinnings of gender/sex. There are a host of factors that impact what you call “biological gender” that blur the lines: gain/loss of sex chromosomes, chromosomal abnormalities, epigenetic (gene regulation) phenomena, and mutations in sex-associated genes just to name a few. Some of the so-called disorders caused by these phenomena are surprisingly common and some people don’t even know that they have them.

It does a major disservice to the millions of people (yes,… Read more »

Swammer12
Reply to  TINY HANDS
3 months ago

Changing known facts for outliers doesn’t make sense. Outliers exist in everything, that doesn’t break the general tenants of something.

TINY HANDS
Reply to  Swammer12
3 months ago

That’s how science works. The “known fact” of discrete categories of gender/sex has been disproven so our view of sex/gender must change. Does that mean intersex/transgender athletes should be able to compete with their chosen gender even if they have a competitive advantage? Honestly, i don’t know how this issue should be best handled in order to create an even playing field while respecting the dignity of every athlete. But I do know that attempting to portray this issue as black/white, especially in the way that many of the comments here have done, is simply out of step with the science.

swammer12isabozo
Reply to  Swammer12
3 months ago

But it isn’t a ‘fact’ if outliers disprove it.

steve
Reply to  TINY HANDS
3 months ago

WOW wish more people would have applied that same grey area thinking to our election.

Aaron
Reply to  steve
3 months ago

No, Biological gender is not as easy as it sounds. There are dozens of chromosomal abnormalities (people who are neither XX nor XY) and there are people born everyday expressing both sex organs. These issues effect millions of people. I want to have a conversation about fairness, because as I said I do not think allowing transgendered women to compete against women is inherently fair. But to have that conversation we cannot deny basic fact.

DistanceSwimmer
Reply to  Aaron
3 months ago

But do they still have unfair advantages if their testosterone is suppressed? Additionally, Michael Phelps has unfair advantages because he was born into a body with large hands and he is tall, just as female transgender athletes have the “advantage” of being born into a man’s body. Who are we to decide that Michael Phelps’ advantage is okay because he is cis, but trans athletes are not allowed to compete in a way that supports their gender identity? As I have already stated, these athletes don’t even have an advantage once their testosterone is below a certain level, so it is clear to me that discriminating against MTF trans athletes is both unfair and unproductive.

Chalmers > Dressel
Reply to  DistanceSwimmer
3 months ago

This is not discrimination, this is common sense

Swimmah
Reply to  DistanceSwimmer
3 months ago

Your argument is entirely wrong, and I’ll tell you why. Genetically yes, Michael Phelps was more inclined to have success if he worked hard enough to take advantage of his physical traits. He doesn’t have an insane amount of extra testosterone, he just developed early and worked hard. Transgender women have suppressors, but that can’t change foundational biology. Studies (I can link some if needed) on transgender women have shown that male hormone levels are still relatively high, and muscle development is starkly different. Even just physically you can tell the difference. It’s unfair to pit XY against XX.

Swimmah
Reply to  DistanceSwimmer
3 months ago

A man born into a male body is fair. A largely biological male competing in women’s sports isn’t.

WestCoastRefugee
Reply to  DistanceSwimmer
3 months ago

“But do they still have unfair advantages if their testosterone is suppressed?”

To answer your question, yes. Testosterone suppression does zero to counter the fact that males are born:

  1. With larger hearts, lungs and bones
  2. Greater bone density.
  3. Significantly higher VO2 Max (around 25%)
  4. With more fast twitch muscle fibers.

The above 4 items are biological fact, so don’t waste your time arguing it. Your statement regarding Michael Phelps is not a good analogy. Just having large hands and being tall does not automatically make you a phenomenal athlete, not to mention that while dominant he was not unbeatable.

swimmer
Reply to  DistanceSwimmer
3 months ago

Like you said he was born into the body… he didn’t take anything to gain those advantages

steve
Reply to  DistanceSwimmer
3 months ago

and if Michael Phelps was 6’11” he could have been a basketball player .You dont see him complaining he couldnt compete in gymnastics because he was too tall with big hands. You tend gravitate to the sport that fits you, how is that an unfair advantage.

torchbearer
Reply to  DistanceSwimmer
3 months ago

If you have strong male physique all your life, then take some blockers to get your testosterone down for a year (as required for TG athletes), of course you still have an advantage. There is more to male physical advantage than 1 hormone. Though I fully support trans people in all aspects of life otherwise.

Last edited 3 months ago by torchbearer
Jim
Reply to  DistanceSwimmer
3 months ago

There is no requirement to suppress hormones at the youth or high school level. This EO allows for competing in the category you identify with- nothing else required. There is a distinct biological/physiological advantage of competing as a male (and yes, any combination of chromosomes with a Y designates you as male). During adolescence and puberty, males gain significantly more muscle mass, speed, strength etc than female counterparts undergoing similar training. Allowing them to compete against similarly aged peers of the opposite sex is a significant and real advantage. This inclusive directive will move to destroy women’s athletics. You cannot correct discrimination of one group by intentionally discriminating against another. There is no easy fix or answer – but allowing… Read more »

Last edited 3 months ago by Jim
Shari
Reply to  DistanceSwimmer
2 months ago

You don’t believe extra large hands isn’t an advantage in basketball or football? Pufft! 💨

HJones
Reply to  Aaron
3 months ago

Exactly. This isn’t a matter of denying the existence of transgendered people, it’s acknowledging the science of biological sex that occurs in pretty much all multi-cellular organisms. Don’t most transgendered people agree on the existence of biological sex when they make the argument that it is distinct from gender identity? Unfortunately, delusion is not selective to just one side of the political aisle.

Magda
Reply to  Aaron
3 months ago

I think one of the biggest oversights with this whole thing is that there is sex and there is gender. Gender-wise we’re all supposed to be equal. Sex-wise, you’re either XX or XY (with exceptions, though it’s a TINY minority of the population), hence the tags ‘female’ and ‘male’. Gender-wise you’re a woman, man, she, he, they, them, etc. I’m not lying, it’s in the dictionary.
We divide sports into sex because DUH! Wasn’t there a wrestler or someone who cracked a female’s head open, they were allowed to fight together because the wrestler identified as a woman (which, fine, that’s alright, but it’s a female sport, though we misname them as ‘womens” sports) and was naturally much, MUCH… Read more »

Swimmer
3 months ago

This is just next level stupid. This will be the new America. I feel bad for all the girls whose dreams will be crushed.

Meeeeee
Reply to  Swimmer
3 months ago

While being a “Restore America as a Champion for Women and Girls” according to their own words. But by only seeing harm to the transgender woman and not to the biologic woman those words are hollow.

kate
Reply to  Swimmer
3 months ago

And what about the girls that are told they cant compete? what about their dreams?

Not Rocket Science
Reply to  Swimmer
3 months ago

“All the girls…”
how common a phenomenon do you imagine this to be? Scores of men rushing to “become female” to beat women at sports?

Irish Ringer
Reply to  Not Rocket Science
3 months ago

We have no idea how common it will be because until now it hasn’t been allowed on a wide scale basis. I would have never thought we would have had so many pronouns to describe someone either, but here we are.

SwammaJammaDingDong
Reply to  Swimmer
3 months ago

Xiden just cancelled women.

CrinkleCut
3 months ago

Dreadful. Biden is radical, destroying women’s sports.

Questionable
Reply to  CrinkleCut
3 months ago

But doesnt that make you feel good? Appease a handful for the detriment of thousands?

Come on now, no need to be so selfish. Be more accepting of all those 10 trans athletes in the NCAA swimming world while spitting in the face of half the NCAA athlete population.

About Jared Anderson

Jared Anderson

Jared Anderson swam for nearly twenty years. Then, Jared Anderson stopped swimming and started writing about swimming. He's not sick of swimming yet. Swimming might be sick of him, though. Jared was a YMCA and high school swimmer in northern Minnesota, and spent his college years swimming breaststroke and occasionally pretending …

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