On Thursday afternoon, President Joe Biden's administration proposed a rule change under Title IX that would prohibit schools from "categorically" banning transgender students from competing on athletic teams that are consistent with their gender identities.
Title IX is the federal law that prohibits sex-based discrimination in any school or any other education program that receives funding from the federal government.
The rule change would offer flexibility to K-12 schools and universities to limit the participation of transgender students if it is determined their presence would undermine "fairness in competition" or potentially lead to sports-related injuries.
These were the two most prominent reasons given by those who supported Wyoming's Senate File 133. The Legislature passed the bill into law during the 2023 Wyoming legislative session. This law prohibits transgender girls from participating in girls sports in Wyoming.
What It Does
The Biden proposal potentially puts more decision making into the hands of schools to determine the eligibility of transgender athletes on a case-by-case basis. The Department of Education said the proposal was meant to offer "much needed clarity" about how America's public schools and universities should handle the issue of transgender athletes participating in girls sports.
Under the proposed rule, elementary school students would be able to participate in sports consistent with their gender identity. This is somewhat consistent with SF 133, which applies to students in grades 7-12.
For older students, questions of fairness and physicality would come into play.
The proposed rules are essentially in line with Wyoming's current policy on transgender athletes. This policy will expire on July 1 when SF 133 goes into effect.
A Title IX rule infraction is generally considered a breach of federal law.
State Sen. Wendy Schuler, R-Evanston, sponsor of SF 133, said the Biden rule proposal enacts into federal law the same problems she was aiming to solve with her legislation.
If SF 133 is ruled unconstitutional in court, a commission will be established by the state to handle these cases. Schuler pointed out this commission would have the power to rule in favor of allowing transgender athletes to compete, and that under her new law, transgender girls can still fully practice with girls sports teams.
"In a situation where there is an unfair advantage, maybe a safety issue, I just think it's better in a neutral commission where they don't have to see that student or those other girls everyday as they walk down the halls," she said.
Although she supports local control, Schuler pointed to the fact that in athletics, schools tend to prefer to win.
"I get what they're (Biden Administration) trying to do and I understand," Schuler said. "Schools, they do know their students better than a commission, but the whole reason for a commission is it takes away some of the tough decisions for schools to make."
The competitive desire, she said, could give schools a bias when deciding whether to allow a transgender athlete to compete, although she said one high school athletic director told her they wouldn't let any transgender girls compete.
"Because he didn't think it's right," she said.
Other Side Of The Coin
Rep. Mike Yin, D-Jackson said he finds Biden's proposed rule change conforms with other current federal laws.
There are around 15.3 million public high school students in the United States and a 2019 study by the Centers For Disease Control estimated 1.8% are transgender. A 2017 survey by Human Rights Campaign suggested fewer than 15% of all transgender boys and transgender girls play sports.
Yin said he agrees with Gov. Mark Gordon, who wrote in his letter letting SF 133 pass into law, that it will open Wyoming up to lawsuits on questions of equal protection.
For the past nine years, the Wyoming High School Activities Association has left it up to individual schools to determine eligibility when making these types of reviews. Not one of those cases has been appealed.
There have been instances in recent years of transgender females setting records in girls' and women's sports on a national level, and one of the inspirations for Schuler's bill was a parent who complained about a Wyoming high school transgender female qualifying for the state track meet.
"When it affects the ability of the other female athletes to maybe get knocked off the podium or being left home from state tournament or state track or state swimming or golf or whatever the sport is, I think that's when it gets a little bit dicey," Schuler said.
On Wednesday, the Kansas Legislature overrode its governor's veto of a ban on transgender athletes in girls' and women's sports.
Chloe's Law
The other bill crafted during the 2023 Wyoming Legislature addressing transgender rights is "Chloe's Law," which would have allowed the state to revoke doctors' licenses for performing transgender treatments on children.
"We're not doing enough to see the problems these children will be facing later in life," said Sen. Anthony Bouchard, R-Cheyenne, sponsor of the bill.
Chloe's Law died in the House when some Republicans argued that more moderate Republicans had rendered the bill so that it was meaningless in effect.
The Kansas Legislature is currently considering legislation similar to Chloe's Law and Tennessee recently passed this legislation.
Kansas And Arkansas Bills
LGBTQ-rights advocates say efforts to address transgender issues are part of a national campaign from Republicans to shun transgender, non-binary, gender-queer and gender-fluid people from participating in society, and a denial of the reality of a changing world.
In recent days, the Kansas Senate voted by a supermajority to pass legislation requiring people to only use public bathrooms in alignment with their gender of birth.
Bouchard and Rep. Jeanette Ward, R-Casper, said they would both support similar legislation in Wyoming.
"I think that women and especially minor children deserve to have privacy and safety in Wyoming when they use bathrooms and locker rooms designated for females (and males deserve this also for private spaces designated for males,)" Ward said in a Thursday email.
"If we as a society accept that subjective feelings about one's gender supersede objective biological reality, then there no longer remains a logical reason to have sex-segregated private spaces like locker rooms and bathrooms anywhere," she said.
But Ward said she would not expect this type of legislation to come next year as the 2024 Legislature is a budget session, requiring a ⅔ vote in the House to introduce a non-budget related bill.
The Kansas bathroom bill also prohibits people from changing their gender or name on their driver's license.
A bill in Arkansas goes even farther, allowing transgender people to be charged with a misdemeanor for using bathrooms or changing rooms associated with their gender identities if non-transgender minors are present and the transgender individuals entered "for the purpose of arousing or gratifying a sexual desire."
According to the Associated Press, Arkansas is among seven states that have banned transgender students from using school bathrooms and locker rooms associated with their gender identities.
Wyoming Attorney General Bridget Hill did not return a request for comment.
Leo Wolfson can be reached at: Leo@CowboyStateDaily.com
