A West Virginia law (HB 3293) bans girls who are transgender from participating in school sports. B.P.J., a 12-year-old middle school transgender girl has lived as a girl since the fourth grade. She is receiving puberty-delaying treatment and estrogen hormone therapy, and has not and will not experience any of the physiological characteristics of puberty experienced by typical boys. Instead, she will develop physiological characteristics consistent with the hormonal puberty of typical girls.
The Court of Appeals had precluded the law from being enforced while the appellate court considered B.P.J’s case. The State appealed to the Supreme Court in order to seek emergency relief. On April 6, 2023, the Supreme Court of the United States refused to intervene in the case.
The same day, the Biden Administration announced a proposed change to Title IX, which would make it illegal for schools to broadly ban transgender students from sports teams that align with their gender identity, rather than their assigned sex at birth. Over the past three years, at least 19 states have passed laws broadly banning transgender students from sports teams that do not align with their sex assigned at birth. If enacted, the Biden Administration’s proposed changes would render these policies illegal.
On April 13, 2023, the Department of Education Office for Civil Rights (OCR) published the proposed rule, which would require that “If a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.” Comments are due on or before May 15, 2023.
U.S. House Republicans recently passed a bill that would prohibit transgender women and girls from playing on sports teams consistent with their gender identity at federally supported schools and colleges. The bill was approved by a 219-203 party-line vote, but it is unlikely to advance further as the Democratic majority in the Senate will not support it and the White House has said that President Joe Biden would veto it. Nonetheless, this bill shows that this topic will continue to be a top political issue for Democrats and Republicans, and the impacts will be significant for schools.
The proposed rule can be found here. OCR also released a Fact Sheet on the proposed rule, which can be found here. The new rule would apply to public K-12 schools, as well as colleges, universities, and other institutions that receive federal funding. LCW will monitor this topic for developments.
West Virginia v. B. P. J., by Jackson (2023) __ S.Ct.__ [2023 WL 2801383].