The passionately debated topic of transgender athletes and their rights to participate in athletics has intensified across media sites considering the recent success experienced by Lia Thomas, a University of Pennsylvania transgender female student-athlete swimmer. Her notoriety has brought to the forefront the balancing of the rights of transgender athletes and the idea of keeping an equal playing field. Policymakers are struggling to find a middle ground that mutually benefits both sides without compromising the protections afforded by the laws of the United States.

Significant Legal Decisions

Several significant legal decisions on transgender students and their rights to equal participation have been handed down. On June 15th, 2020, the U.S. Supreme Court (“SCOTUS”) held in a 6-3 decision in Bostock v. Clayton County that an employer who discriminates against an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964. The most important takeaway from this case is the Supreme Court’s conclusion that a person’s “sex” is defined by gender identity and not by their biological gender. This conclusion has led to much speculation and insight into how SCOTUS could rule in future cases involving Title IX discrimination and the right of transgender athletes to compete in sports and utilize facilities such as restrooms and locker rooms.

In August of 2020, the Office for Civil Rights (“OCR”) issued a response to a complaint filed by three cisgender females alleging that the Connecticut Interscholastic Athletic Conference (“CIAC”) violated Title IX with their policy allowing transgender athletes to compete based on their gender identity. The three females, who competitively competed in the 55-meter dash, asserted that it was almost impossible for them to prevail against transgender girls, thus denying them the equal opportunity to win events, championships, and to possibly attract the attention of college recruiters to obtain a collegiate athletic scholarship which are all violations of Title IX.

The OCR concluded that for purposes of Title IX enforcement, the term “sex” as used in the Title IX statute refers to one’s biological gender and not their gender identity, therefore finding the transgender participation policy of the CIAC to be in direct violation of Title IX. Although the cisgender females claim they have zero chance of prevailing against a transgender female in the 55-meter dash, Chelsea Mitchell, a cisgender female who was an original claimant, won the Connecticut 55-meter Dash state championship beating out one of the transgender girls.

Unfortunately, SCOTUS has yet to definitively answer the question of whether the term “sex” is defined as one’s gender identity or biological gender regarding Title IX. The issue of transgender athletes and their right to participate became a very politicized topic with the Trump administration striking out the Title IX guidance provided by the Obama administration, which defines gender identity as the controlling factor and inserting the policy of the OCR that defines biological gender as the controlling factor. President Joe Biden has pledged to reinstate the Obama-era Title IX guidance.

Recent Trends in Judicial Decisions

In August of 2020, the U.S. Fourth Circuit Court of Appeals ruled in favor of Gavin Grimm, a sophomore at a Virginia High School, who in 2014 was barred from using the boys’ restroom. The court held that “sex” in the Title IX statute refers to gender identity. This 2020 Fourth Circuit decision upheld a 2019 ruling that even in the absence of the guidelines provided by the Obama administration, gender identity is still the controlling factor governing the rights of transgender students in education and sports participation.

In August of 2020, a U.S. District Court in Idaho issued a preliminary injunction blocking the implementation of a state statute that limited the participation of transgender women in sporting events concluding that the Plaintiffs were likely to establish that the statute is unconstitutional. Since the District Court concluded that the Plaintiffs are likely to establish that the statute is unconstitutional. The recent trends in judicial decisions favoring the transgender athlete coupled with Biden administration’s pledge to reinstate the Obama-era Title IX Guidance, may indicate an environment that is more conducive for SCOTUS to define “sex” on the basis of gender identity regarding the participation of transgender athletes in sports.

Lia Thomas: Penn Swimmer

Recently, University of Pennsylvania student-athlete Lia Thomas has been the subject of severe backlash due to the swimmer’s recent success in the pool. Although Thomas has diligently followed the strict guidelines for transgender student-athletes provided by the NCAA, many debates the fairness and equity of having a former man compete against women in sport. Thomas is a transgender woman who was a former member of the UPenn men’s swimming program, where Thomas competed for three years. After receiving hormone suppressant therapy, which the NCAA requires, Thomas began competing as a member of Penn’s women’s program.

Thomas has posted impressive times throughout the swimming season that suggests the swimmer could challenge American records of Missy Franklin and Katie Ledecky at the NCAA Championships. John Lohn, the editor-in-chief of Swimming World, has argued that even though Thomas has endured the required testosterone suppression therapy, the advantage possessed by Thomas has not been mitigated, thus resulting in an unfair advantage to biological females. Lohn compares Thomas’ presence in the water as relatable to racing against the doping athletes of East Germany and China. Lohn claims that the NCAA’s protocol requiring a full year of hormone suppressant therapy is not enough to mitigate the advantages of years of testosterone production fully. Lohn states that it is critical to find a welcoming environment for transgender athletes but not without guaranteeing a level playing field for biological women.

On the other hand, ACLU Philadelphia Trans Justice Coordinator Naiymah Sanchez thinks Thomas’ participation as a transgender woman is “amazing.” Sanchez went on to explain that “Trans rights are human rights and that trans athletes should be allowed to compete in the gender with which they identify. Dr. Raymond Cattaneo, a lead pediatric faculty member of the Pride Program stated that “Thomas is absolutely following the rules set forth by the NCAA.” Many argue that the playing field is unfair for cisgender athletes because they do not possess the physical attributes that a transgender woman has even after hormone suppression therapy. Sanchez rebuts this claim with evidence of her own experiences that even cisgender women athletes can have physical advantages over cisgender women or even transgender women.

Regardless of one’s thoughts about the rights and protections of transgender athletes participating in sporting events, we must caution ourselves on being overly critical of student-athlete Lia Thomas. Thomas has willfully participated in hormone suppression and followed all the guidelines provided by the NCAA to participate in women’s swimming. Barring a sudden change in legislation or if SCOTUS grants certiorari on a case involving transgender athletes and their right to compete, Thomas should and will be allowed the opportunity to compete and possibly win an NCAA National Championship.

Adrian Hannah is a 3L at the University of Arkansas School of Law. He obtained his undergraduate degree in Finance from the Walton School of Business at the University of Arkansas in 2021. He can be contacted via email at [email protected] or on Twitter @AdrianHannah3.

Video and picture of NCAA guidelines via the NCAA website.