With the Equality Act remaining at an impasse in the U.S. Senate, one sticking point for potential supporters is whether or not the legislation will address the hot button issue of transgender kids participating in sports as one prominent LGBTQ legal group says it will draw a red line on the issue in any negotiations on the bill.
Shannon Minter, legal director for the National Center for Lesbian Rights, said the organization “will certainly hold firm” on protecting transgender kids from all forms of school-based discrimination, including in sports, which he said is already law in the aftermath of the U.S. Supreme Court’s decision last year in Bostock v. Clayton County.
“There seem to be a lot of misconceptions about this issue, so this may well turn out to be an area where more discussion will show there is little if any real disagreement.,” Minter said. “For example, current law already allows for reasonable regulations, such as those adopted by the NCAA, to ensure both inclusion and fairness in elite competition. Nothing in the Equality Act would change that.”
After the court ruling in Bostock, which found anti-LGBTQ discrimination is an illegal form of sex discrimination under the law, transgender legal advocates have argued — and won in court — the ban on sex discrimination in schools under Title IX of the Education Amendment of 1972 requires them to allow transgender students to compete consistent with their gender identity. Moreover, U.S. government discrimination on the basis of sex is subject to heightened scrutiny under legal jurisprudence, which in theory after Bostock would apply to schools prohibiting transgender athletes from participating in sports.
Amid a wave of anti-LGBTQ legislation throughout the country targeting transgender kids in sports — most recently in Oklahoma, where the state House approved legislation essentially barring them from participation — legal advocates have already declared they will look to the courts for the legal protections afforded under Bostock to challenge any new laws.
And transgender advocates are pointing to the policy of the National Collegiate Athletic Association, which allows transgender athletes to participate consistent with their gender identity provided they meet certain sex-based characteristics, such as testosterone suppression treatment for transgender women to compete in women’s sports. Although the NCAA had held out on commenting on anti-transgender state legislation, the organization last week issued a statement affirming its commitment to transgender athletes and hinting it would move events from states with those measures in place.
Other transgender groups echoed the sentiment that current law already protects transgender students and the NCAA’s policy could provide a model for schools writ-large, although they stopped short of saying they would draw the line on the issue in negotiations on the Equality Act.
Rodrigo Heng-Lehtinen, deputy executive director of the National Center for Transgender Equality, pointed to both existing law and the NCAA in response to an inquiry from the Washington Blade on talks about the legislation.
“NCTE is committed to protecting transgender youth from discrimination in every aspect of education, including school sports,” Heng-Lehtinen said. “The Bostock decision also reinforces that anti-transgender discrimination is illegal. Notably, the NCAA already has policies to allow for transgender student-athletes to compete, and nothing in the Equality Act would change that.”
NCTE didn’t respond Wednesday to a follow-up inquiry on whether that means the transgender sports issue would be a red line in talks over the Equality Act.