Title IX was enacted to ensure that all students have equal access to educational opportunities, regardless of gender. This includes protecting the rights of transgender and intersex students to equally access school sports programs and facilities. Playing school sports has been shown to increase test scores, decrease depression rates, and foster confidence for girls and women. Increasing opportunities for participation in school sports is vital to ensuring that, consistent with Title IX’s broad purpose, the full range of educational benefits is available to all girls and women. Unfortunately, 15 states passed laws between 2020 and 2022 that ban transgender and (in some cases) intersex students from participating in school sports. These attacks on already marginalized students stain decades of progress toward gender equity in sports.
This fact sheet explains the rights of transgender and intersex girls and women to participate in school sports under Title IX. It describes how laws seeking to ban these students undermine opportunities for all girls and women to play sports by enforcing gender stereotypes and policing girls’ bodies. It also notes the disparate impact of these stereotypes on Black and brown girls and women, who are often subject to increased scrutiny for failing to conform to gender-based stereotypes of femininity. Finally, it explains how inclusive athletics policies do not harm anyone, are associated with increased sports participation by all girls and women, and are consistent with Title IX’s broad mandate to ensure gender equity in education.
Title IX protects transgender and intersex students’ rights to play on teams matching their gender identity.
Title IX prohibits sex discrimination, which includes discrimination on the basis of transgender or intersex status. In its 2020 ruling in Bostock v. Clayton County, an employment discrimination case, the Supreme Court affirmed that discrimination on the basis of a person’s being transgender is “inherently” a form of sex discrimination. Federal courts have recognized that both Title IX and the U.S. Constitution afford transgender students, including athletes, protection against sex-based discrimination. Based on these legal precedents, the U.S. Departments of Justice and Education also interpret Title IX to prohibit such discrimination. Title IX overrides state laws that discriminate against transgender and intersex girls and women. As such, Title IX’s bar on sex discrimination extends to protect the rights of transgender and intersex girls and women to play on school sports teams consistent with their gender identity.
Laws and policies across the country have for years supported transgender and intersex girls in playing school sports alongside their peers.
While their numbers are small, transgender and intersex girls and women have been playing school sports for many years. Though many states have policies that impose restrictions on transgender and intersex girls and women participating in sports, over the last decade, inclusive policies have emerged in several states and the District of Columbia8 allowing these students to participate in school sports consistent with their gender identity. Transgender and intersex college athletes have also played under NCAA rules according to their gender identity for over a decade. In addition, 17 states and Washington, D.C., also have their own state laws that explicitly protect transgender students’ rights to pursue an education free from discrimination, including playing school sports.
Natural body diversity is an inherent part of sports, and policing girls’ and women’s bodies leads to more stereotyping and discrimination.
Athletes come in all shapes and sizes. These differences may be advantageous or disadvantageous based on the scenario. For example, at 4 feet, 8 inches tall, professional gymnast Simone Biles is significantly smaller than the average American woman. Meanwhile, at 6 feet, 9 inches and 6 feet 10, inches, professional basketball players Brittney Griner and Han Xu tower over their opponents on the court. All three women’s statures are seen as positive and as a factor in their athletic success—which, for Biles and Griner, has included winning an Olympic Gold Medal.
Transgender and intersex athletes are no exception. The assumption that transgender girls and women have categorical, overwhelming physical advantages compared to other girls and women is overly broad and not supported by evidence. This overbroad assumption fosters discrimination against these already marginalized students, particularly transgender and intersex girls and women of color, who already face some of the highest rates of discrimination and violence.
Discriminating against transgender and intersex girls and women threatens equal opportunities for all girls and women.
Transgender and intersex girls are girls, and transgender and intersex women are women. Discrimination that denies any girl or woman—including those who are transgender or intersex—an opportunity puts the rights of all girls and women at risk.
Policing who is or isn’t a “woman”—including through restrictive “sex verification” rules—is dangerous; it not only erects barriers for transgender and intersex athletes who want to compete consistent with their gender identity, but also cisgender women who may fall outside stereotypical notions of femininity. Under these laws, many students could be subjected to intrusive demands for medical tests or information. Especially tall women, very muscular women, or women who present in more masculine ways could be forced to undergo medical testing or be prevented from playing sports. Black and brown women and girls would be especially vulnerable to this sort of scrutiny given racist and sexist stereotypes, as they are already targeted for their nonconformity with society’s ideals about white femininity. Discriminating against transgender and intersex girls and women in sports only perpetuates the very stereotypes that Title IX was enacted to combat.
There are real, longstanding barriers and real solutions for gender equity in sports—and they have nothing to do with banning some girls who are transgender or intersex.
Girls and women have far fewer opportunities to play sports than do boys and men in high school and college. This impact is felt disproportionately by girls of color, who receive even fewer chances to play on school sports teams than boys and white girls. Additionally, women’s and girls’ teams are often treated as second class by their schools with respect to equipment, facilities, and overall resources. Women in sports also consistently report gender bias in pay and frequently being passed over for promotions in favor of men in their field. Finally, sexual abuse of student athletes of all ages by their teammates, coaches, and team doctors remains a rampant and persistent issue.
These barriers to gender equity in sports are well- documented and have persisted for years, and preventing women and girls who are transgender or intersex from playing sports does nothing to address them. In fact, allowing transgender athletes to participate in sports correlates with increased participation by all girls. A 2021 study showed that in states with inclusive policies, participation by girls in high school sports either remained constant or increased after those policies were implemented, while girls’ participation in states with policies that excluded transgender girls decreased.
A wide array of women’s rights organizations support inclusion of transgender and intersex girls and women in sports.
Wrapping discrimination against girls and women who are transgender or intersex in the cloak of “protecting girls’ and women’s sports” is unfounded and unhelpful and often is nothing more than an attempt to mask anti-trans sentiment. Leading women’s rights organizations have repeatedly voiced support for transgender and intersex girls and women to have equal opportunities to participate in sports, along with hundreds of women athletes, including history-makers like Billie Jean King, Megan Rapinoe, and Candace Parker, who have spoken out against efforts to exclude trans and intersex youth from sports and affirmed the value of nondiscriminatory access to sport for young people.
Like their peers, transgender and intersex girls and women sometimes lose at sports, and sometimes they win. The small number of transgender and intersex girls and women athletes have not demonstrated any categorical “dominance” or overwhelming advantage.
Groups and states opposing participation by transgender and intersex girls and women in athletic competitions for women and girls have been unable to cite one example of transgender and intersex athletes consistently dominating their competition.
Take attacks on swimmer Lia Thomas, for example. When Thomas, swimming for the University of Pennsylvania, became the first transgender woman to win an NCAA swimming championship, she was met with fierce backlash under the pretext of “protect[ing] women’s rights under Title IX.”28 Yet the day after winning the 500-yard freestyle race, Thomas finished fifth in the 200-yard freestyle— proving both that transgender women do not always win and that protecting their right to compete does not prevent cisgender women from excelling and succeeding. Rather, affirming their right to compete is essential to protecting the rights of all girls and women to participate in school sports under Title IX.
Consider also Fischer Wells, a 12-year-old girl and the only openly transgender girl playing K–12 sports in the state, who recruited girls in her class to kickstart her school’s girls’ field hockey team. When Kentucky sought to ban her from playing, Wells testified how “detrimental for [her] mental health” it would be if she could not play with the many friends she made since starting the team. Despite proclaiming that the bill was needed to “preserv[e] the integrity of women’s sports,” proponents were unable to cite to a single example of Kentucky students being harmed by allowing Fischer or any other transgender student to play sports. Rather, the bill’s immediate effect was solely to target and ban one child, Fischer Wells. Similarly, representatives in both South Carolina and Tennessee conceded that they knew of no other transgender athletes seeking to participate in the state and that their state bans were “proactive” in seeking to prevent any future opportunities for these students.
If lawmakers actually want to help achieve gender equity in sports, then they must let transgender and intersex athletes play. Banning transgender and intersex athletes from competing only perpetuates inequity and sex-based discrimination in violation of Title IX by targeting transgender and intersex students, who already face horrific amounts of hatred, violence, and discrimination simply for being who they are.