Sen. Jeff Merkley (D-Oregon) speaks at the reintroduction of the Equality Act at the U.S. Capitol on May 2, 2017. (Washington Blade photo by Michael Key)
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 April 21 to a follow-up inquiry on whether that means the transgender sports issue would be a red line in talks over the Equality Act.
Andy Marra, executive director of the New York-based Transgender Legal Defense & Education Fund, said in response to an inquiry the need for allowing transgender athletes to compete consistent with their gender identity will become apparent as talks continue.
“For a decade now, the NCAA has maintained an inclusive policy that allows for transgender athletes to participate fully in sports. We are confident that as we continue to clarify this issue, it will become clear that not only is discrimination against transgender students both harmful and wrong, it is also already illegal.”
If advocates hold firm on the issue of transgender athletes in sports, it may well mean the Equality Act will have no chance of winning the 60 votes needed to overcome a filibuster in the Senate.
A recent PBS Newshour poll found two-thirds of Americans oppose anti-transgender laws proposed in the states, including measures prohibiting students from participating in sports. That opposition to anti-trans sports bills is seen across party lines, with 69% of Democrats, 66% of Republicans and 67% of independents saying they opposed the measures. However, Americans are most closely divided on whether transgender athletes should be allowed to compete on teams that match their gender identity.
“For grade school, 50% of people said transgender children should be allowed to play on teams that match their gender identity, while 44% said they should not. In middle school, the split was 49% for, and 47% against,” writes Matt Loffman, PBS NewsHour’s deputy senior politics producer. “In high school, 47% were for and 48% against. And in college, 49% were in favor and 45% opposed.”
Seeming to pick up on that hesitation, Sen. Susan Collins (R-Maine) — who had co-sponsored the Equality Act in the previous Congress, but not now — has articulated the sports issue as a point of contention she wanted to address as a condition for renewed support of the Equality Act. Collins was among the senators who voted for an amendment proposed as a part of President Joe Biden’s COVID relief package that would have zeroed out Title II funding for schools allowing transgender athletes to participate in sports.
Joining Republicans in voting for the amendment was Sen. Joe Manchin (D-W.Va.), who remains the lone Democratic hold out on the Equality Act as a Democratic insider says he’s facing a deluge of calls in opposition to the legislation. Some insiders are looking to Sen. Shelley Capito (R-W.Va.), an unlikely Republican who may be a surprise supporter of the Equality Act, to lock up support from Manchin.
Transgender advocates may have good reason to be concerned negotiators on the Equality Act may buckle on the transgender sports issue. After all, when the Blade asked Sen. Jeff Merkley (D-Ore.), the lead co-sponsor of the Equality Act, during an interview upon introduction of the bill in February whether he’d be willing to make accommodations for the issue, he hedged as opposed to ruling it out.
“In terms of the dialogue that is held between the two chambers and with the Republican colleagues, that dialogue will happen in close consultation with the civil rights groups that have enormous expertise and working to make sure that no modification or clarification is anything that undermines the opportunity of LGBTQ Americans to thrive in our society,” Merkley said.
Many key negotiators on the Equality Act are staying silent on the transgender sports issue as they continue to keep their cards close to their vest on talks. The Human Rights Campaign, for example, didn’t respond to the Blade’s request for comment for this article.
Merkley said in a statement to the Blade provided by his office in response to an inquiry for this article that he remains committed to transgender athletes in his efforts to pass the Equality Act.
“All kids deserve the opportunity to play school sports with their friends,” Merkley said. “That experience of forming camaraderie, being part of a team, and discovering something you love is so valuable, and no kid should be turned away. Every child deserves equal dignity, respect, and opportunity, and that’s why I’m working hard in the Senate to pass the Equality Act.”
Merkley said his focus is finding the 60 votes in the Senate needed to end a filibuster on the legislation and get the measure to Biden’s desk, who campaigned on signing the legislation into law within his first 100 days in office.
“I am deeply committed to working on a bipartisan basis to find the necessary votes to pass this landmark law and replicate the bipartisan success of the 2013 Employment Non-Discrimination Act,” Merkley said. “Those conversations are ongoing. I am gathering feedback and working with colleagues on both sides of the aisle — and with civil rights organizations — to find a path forward that will bring senators together behind a vision of full equality for LGBTQ Americans.”
