Trans lives sidelined in dispute over Title IX

ON APRIL 15, state legislators in Alabama and North Dakota joined 29 other states in advancing bills aimed at restricting the rights of trans students to participate in athletics. Not even four months into 2021, the year has already seen a record amount of anti-trans legislation with at least 117 bills having been introduced this legislative session by Republican lawmakers.

So far, bills in only four states — Idaho, Arkansas, Mississippi and Tennessee — have become law, and most of them will take effect this summer barring any lawsuits or appeals. Republican lawmakers who have introduced these bills claim to be doing so to protect the sanctity of women’s sports.

Mississippi Gov. Tate Reeves said that he “proudly signed the Mississippi Fairness Act to ensure young girls are not forced to compete against biological males.” Despite a lack of evidence, lawmakers claim that the bodies of biological males make them inherently better at sports.

“Few (state legislators) could name any cases where the participation of transgender athletes in youth sports had become a source of contention within the teams,” Priya Krishnakumar of CNN said.

Oregon is one of 19 states whose legislative branch has not had one of these bills introduced in 2021. Oregon Statute 659.850 prohibits discrimination in education on the basis of race, color, religion, sex, sexual orientation, national origin, marital status, age or disability. In 2009, House Bill 3373 amended the term “sexual orientation” in this law to refer to “an individual′s actual or perceived … gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.”

At Lewis & Clark, the policy for trans athletes in sports is written in accordance with NCAA guidelines and does allow for the participation of trans students in varsity athletics under certain circumstances.

According to the policy, a trans male student who is undergoing testosterone treatment may compete on a men’s team after receiving a medical exception for a diagnosed gender identity disorder, but cannot compete on a women’s team. By contrast, a trans female athlete may continue to compete on a men’s team, but may not compete on a women’s team until they undergo a calendar year of testosterone suppression treatments.

Republicans promoting the bills against trans athletes participating in athletics claim that this double standard is the case because male bodies have an inherent athletic advantage. However, Director of Physical Education and Athletics Mark Pietrok believes the discrepancy between which teams trans male and female athletes are allowed to compete on is derived from the NCAA’s views on testosterone.

“It may look like (trans female bodies have an inherent advantage) on the surface,” Pietrok said. “But in reality, I think where (the double standard) comes from with the NCAA is that testosterone is a banned substance. And in that whole process of what an athlete can use when they’re competing, I think that’s the cause of some of the underlying issues there.”

Because there is no definitive evidence that trans female athletes have an advantage when competing against cisgender women, Title IX Coordinator and Deputy Director of Equity and Inclusion Casey Bieberich believes that speaking in generalities is a slippery slope.

“I think that you can look at generalities of height and muscle strength and different things,” Bieberich said. “But you can also look at that within the narrow biological definition of sex to say that it is unfair that someone who’s 5’ 2’’ competes with someone who’s six foot within the same sex. We’d have to have height cutoffs and two different NBAs.”

Pietrok emphasized the fact that making decisions in sports based on physicality alone is not looking at the whole picture.

“Too often people make judgments that physicality gives you an advantage in one way or another,” Pietrok said. “And that takes out the whole mental approach and sports psychology approach … I think much more than the physicality of an individual goes into what allows you to win or lose, and so I think that single view is short-sighted.”

Throughout the debate of whether or not trans athletes should be allowed to compete in sports, both sides continue to come back to one factor: Title IX. Title IX is one portion of the Education Amendments Act of 1972, and it protects against discrimination in any educational program (including athletics) on the basis of sex.

However, because its language is so vague it has been interpreted differently by each presidential administration’s Department of Education.

“For a long time, the Department of Ed just interpreted Title IX how they wanted, and then schools were expected to be in compliance,” Bieberich said. “Now, we’re in a new era where there’s rulemaking, which means there are legal mandates for how we comply with Title IX. And so that really hinges on the interpretation of what it means to be ‘because of sex’, which originally was written very much focused on cis women getting access, without engaging in these things.”

Former U. S. Secretary of Education Betsy DeVos’ education department interpreted “because of sex” literally, and ruled that Connecticut’s school systems, which allow trans athletes to participate, were in violation of Title IX. On the other hand, President Joe Biden’s education department — led by Secretary of Education Dr. Miguel Cardona — has shifted this definition to include sexual orientation and gender identity, confirmed in an executive order signed March 8.

The question then becomes whose interpretation is the law of the land. Liberals use the Biden interpretation when they claim that Title IX protects trans athletes, Republicans such as Utah Sen. Mike Lee use the DeVos interpretation when claiming that “for purposes of determining compliance with Title IX, sex shall be recognized based solely on a person’s reproductive biology and genetics at birth.”

It is a murky area of the law and one that schools constantly have to be looking at for changes. At LC, Bieberich is confident in the current policy and hopes it will remain in effect.

“I want for our students to come back to the fact that ultimately, we’re a school that has policies around this,” Bieberich said. “And we are going to continue to be as protective and inclusive as possible, up to and until we are legally mandated to do something otherwise, which I hope does not come to pass.”