[House Report 118-35]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 118-35
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PROTECTION OF WOMEN AND GIRLS IN SPORTS ACT OF 2023
_______
April 10, 2023.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Ms. Foxx, from the Committee on Education and the Workforce, submitted
the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 734]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 734) to amend the Education Amendments
of 1972 to provide that for purposes of determining compliance
with title IX of such Act in athletics, sex shall be recognized
based solely on a person's reproductive biology and genetics at
birth, having considered the same, reports favorably thereon
with an amendment and recommends that the bill as amended do
pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protection of Women and Girls in
Sports Act of 2023''.
SEC. 2. AMENDMENT.
Section 901 of the Education Amendments of 1972 (20 U.S.C. 1681) is
amended by adding at the end the following:
``(d)(1) It shall be a violation of subsection (a) for a recipient of
Federal financial assistance who operates, sponsors, or facilitates
athletic programs or activities to permit a person whose sex is male to
participate in an athletic program or activity that is designated for
women or girls.
``(2) For the purposes of this subsection, sex shall be recognized
based solely on a person's reproductive biology and genetics at birth.
``(3) Nothing in this subsection shall be construed to prohibit a
recipient from permitting males to train or practice with an athletic
program or activity that is designated for women or girls so long as no
female is deprived of a roster spot on a team or sport, opportunity to
participate in a practice or competition, scholarship, admission to an
educational institution, or any other benefit that accompanies
participating in the athletic program or activity.''.
Purpose
Girls deserve equal opportunity to compete and achieve in
sports. The Biden administration's reinterpretation of Title IX
is a slap in the face to young women and girls, telling them
their hard work, on-field achievements, and athletic futures do
not matter. Title IX was designed to stop discrimination and
ensure equal athletic opportunities for women. By allowing
biological males to compete in girls' sports the Biden
administration will be reversing 50 years of progress for
women. H.R. 734, the Protection of Women and Girls in Sports
Act of 2023 strengthens the law's existing protections for
women, ensures a level playing field for female athletes, and
protects the law from the Biden administration's radical
regulatory scheme.
Committee Action
117TH CONGRESS
First Session--Hearings
On June 23, 2021, the Committee on Education and the
Workforce held a hearing on ``Examining the Policies and
Priorities of the U.S. Department of Education.'' The purpose
of the hearing was to review the Fiscal Year 2022 budget
priorities of the U.S. Department of Education. Testifying
before the Committee was The Honorable Miguel Cardona,
Secretary, U.S. Department of Education, Washington, D.C.,
including on the topic of the Biden administration's
interpretation of Title IX when biological males compete in
women's and girls' sports.
Second Session--Hearings
On May 26, 2022, the Committee on Education and the
Workforce held a hearing on ``Examining the Policies and
Priorities of the U.S. Department of Education.'' The purpose
of the hearing was to review the Fiscal Year 2023 budget
priorities of the U.S. Department of Education. Testifying
before the Committee was The Honorable Miguel Cardona,
Secretary, U.S. Department of Education, Washington, D.C. At
this hearing, concerns regarding Title IX were raised, such as
the rewriting of Title IX regulations by the Biden
administration that would seek to undermine protections for
girls and women when biological males participate in women's
sports, the fairness for biological women participating in
women's sports with biological males, and the administration's
official view on biological males' participation in women's
sports.
118TH CONGRESS
First Session--Hearings
On February 8, 2023, the Committee on Education and the
Workforce held a hearing on ``American Education in Crisis''.
The purpose of the hearing was to examine the state of American
education, including K-12 education, postsecondary education,
and workforce development. Testifying before the Committee was
Ms. Virginia Gentles, Director, Education Freedom Center,
Independent Women's Forum, Arlington, VA; Dr. Monty Sullivan,
President, Louisiana Community and Technical College System,
Baton Rouge, LA; Mr. Scott Pulsipher, President, Western
Governors University, Salt Lake City, UT; and Mr. Jared Polis,
Governor, State of Colorado, Denver, CO. During this hearing,
Ms. Gentles highlighted Title IX for women's sports, urging
members to support H.R. 734, the Protection of Women and Girls
in Sports Act, in her oral testimony.
On March 9, 2023, the Education and the Workforce Committee
voted to report two bills to help empower parents, students,
and women: H.R. 734, the Protection of Women and Girls in
Sports Act of 2023, and H.R. 5, the Parents Bill of Rights Act.
Legislative Action
On February 1, 2023, Rep. Greg Steube (R-FL) introduced
H.R. 734, Protection of Women and Girls in Sports Act of 2023
with Reps. Foxx, Mariannette Miller-Meeks (R-IA), Claudia
Tenney (R-NY), Robert Wittman (R-VA), Daniel Webster (R-FL),
Troy Balderson (R-OH), Ken Buck (R-CO), Ann Wagner (R-MO),
Buddy Carter (R-GA), Matt Gaetz (R-FL), Jason Smith (R-MO),
Jake Ellzey (R-TX), Morgan Griffith (R-VA), Doug LaMalfa (R-
CA), Jerry Carl (R-AL) as original co-sponsors. The bill was
referred solely to the Committee on Education and the
Workforce. On March 8, 2023, the Committee considered H.R. 734
in legislative session and reported it favorably, as amended,
to the House of Representatives by a recorded vote of 25-17.
The Committee adopted the following amendments to H.R. 734:
1. Rep. Owens offered an Amendment in the Nature of a
Substitute (ANS) that makes a technical change and
amends section 901 of the Education Amendments of 1972
by adding at the end the following:
shall be a violation of subsection for a recipient of
Federal financial assistance who operates, sponsors, or
facilitates athletic programs or activities to permit a
person whose sex is male to participate in an athletic
program or activity that is designated for women or
girls. For the purposes of this subsection, sex shall
be recognized based solely on a person's reproductive
biology and genetics at birth. Nothing in this
subsection shall be construed to prohibit a recipient
from permitting males to train or practice with an
athletic program or activity that is designated for
women or girls so long as no female is deprived of a
roster spot on a team or sport, opportunity to
participate in a practice or competition, scholarship,
admission to an educational institution, or any other
benefit that accompanies participating in the athletic
program or activity.
Committee Views
INTRODUCTION
Title IX of the Education Amendments of 1972 (Title IX)
prohibits any education program or activity receiving federal
financial assistance from discriminating on the basis of sex.
In practice, Title IX applies to most elementary and secondary
schools (including private elementary and secondary schools
participating in the school meals programs) and to public and
private colleges and universities. H.R. 734, the Protection of
Women and Girls in Sports Act of 2023, amends Title IX to
prohibit recipients of federal financial assistance that
operate, sponsor, or facilitate athletic programs or activities
from permitting males to participate in any of those activities
that are designated for females. The bill also amends Title IX
to require ``sex,'' in the context of athletic activities, to
be recognized based solely on a person's reproductive biology
and genetics at birth. Finally, the bill clarifies that the
bill's provisions do not prohibit schools or institutions from
permitting males to practice against women's sports teams,
protecting the long-standing practice of some women's athletic
programs of practicing or scrimmaging against males. H.R. 734
is important legislation that will protect equal athletic
opportunities and ensure level playing fields for women and
girls.
UNDERMINING ATHLETIC OPPORTUNITIES
Since Title IX was enacted 50 years ago, female
participation in sports has increased 1,057 percent at the high
school level and 614 percent at the postsecondary level.\1\
Title IX was designed to combat discrimination against women,
and it has worked.
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\1\Impact of Title IX on Women's Sports | Billie Jean King.
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Biden Administration Actions
Unfortunately, that progress is under threat today from the
Biden administration, which is determined to roll back women's
progress. Last year, the Department of Education (Department)
issued a Notice of Proposed Rulemaking (NPRM) to redefine the
term ``sex'' under Title IX.\2\ Later this year, the
administration will finalize those regulations. In addition,
the Department will soon release a separate NPRM specifically
related to athletics.\3\
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\2\https://www.federalregister.gov/documents/2022/07/12/2022-13734/
nondiscrimination-on-the- basis-of-sex-in-education-programs-or-
activities-receiving-federal.
\3\https://www.reginfo.gov/public/do/eoDetails?rrid=308363.
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These regulatory actions will likely undermine the gains
made by women over the last five decades. In addition, the
Department has taken enforcement and litigation actions that
make its intentions clear. First, under the current
administration, the Department dismissed the prior
administration's pending enforcement action related to
Connecticut's failure to require segregated sports teams based
on biological sex.\4\ Second, the Department and the Department
of Justice filed a Statement of Interest in B.P.J. v. West
Virginia State Board of Education arguing that Title IX does
not allow West Virginia to exclude biological males who
identify as females from participating in female sports.\5\
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\4\OCR Case No. 01-19-4025, Conn. Interscholastic Athletic Conf. et
al. (Aug. 31, 2020).
\5\B.P.J. v. West Virginia State Board of Education, Statement of
Interest, 454-475 (S.D. W.V. 2021), https://www.justice.gov/crt/case-
document/file/1405541/download.
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Committee Republicans believe the Department should reverse
its interpretation of Title IX as expressed in the NPRM in
full. However, if the Department insists on finalizing these
policies that will undermine women's athletic opportunities,
the Department has an obligation to be transparent in its
intentions and to subject its policies to proper notice and
comment.
Impact on Women and Girls in Sports
The Department's subterfuge on this issue is not harmless.
Currently, only 19 states have policies in place to protect the
integrity of women's athletic competitions, and even those are
under threat from the Department's regulatory action.\6\
Allowing men to compete in women's athletic activities
undermines the progress made by women and girls since Title
IX's enactment and uses a groundbreaking antidiscrimination
statute to discriminate against the very people it was designed
to protect.
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\6\ https://www.lgbtmap.org/equality-maps/
sports_participation_bans.
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Female athletes have spoken out against the damage being
done. Olympic swimmer Reka Gyorgy missed out on the opportunity
to compete in the collegiate women's 500-yard freestyle
swimming final last March due to the presence of a biological
male in the competition. She urged the National Collegiate
Athletic Association (NCAA) to implement rules to protect the
integrity of women's sports.\7\ Similarly, college track and
field athlete Linnea Saltz has called out athletics
administrators for depriving women of competitive honors,
scholarships, and the opportunities that come with those
achievements.\8\
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\7\https://www.swimmingworldmagazine.com/news/reka-gyorgy-virginia-
tech-swimmer-bumped-out-of-b-final-in-500-free-writes-critical-letter-
to-ncaa/.
\8\https://www.foxnews.com/opinion/ncaa-girls-women-compete-level-
playing-field-linnea-saltz.
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Unfortunately, the pleas of these athletes and other female
athletes have gone unheeded by the NCAA and other governing
bodies. The NCAA's current policies assume that testosterone
suppression will level the playing field for female athletes,
but this assumption is not backed by science. Dr. Michael
Joyner, a physiologist with the Mayo Clinic, stated, ``There
are social aspects to sport, but physiology and biology
underpin it. Testosterone is the 800-pound gorilla.''\9\
Another physiologist, Dr. Ross Tucker, has also said that
testosterone reductions do not reverse the physical advantages
biological males have in athletic competitions.\10\
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\9\https://www.dailymail.co.uk/news/article-10868453/Mayo-Clinic-
doctor-confirms-trans-
swimmer-Lia-Thomas-given-unfair-advantage.html.
\10\Id.
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Concern about athletic opportunities for women in sports
should not be a partisan issue. Most Americans understand the
threat to women's sports posed by the Biden administration's
actions and the radical ideologies underlying them. A
Washington Post-University of Maryland poll conducted last year
found that only three in 10 Americans believed biological males
should be allowed to compete in women's sports.\11\
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\11\https://www.washingtonpost.com/dc-md-va/2022/06/13/washington-
post-umd-poll-most-
americans-oppose-transgender-athletes-female-sports/.
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In addition, last year, the International Swimming
Federation (FINA) approved a new policy to restrict most
transgender athletes from competing in sanctioned events, with
71.5 percent of the international body's member federations
approving of the policy.\12\ The FINA president stated, ``We
have to protect the rights of our athletes to compete, but we
also have to protect competitive fairness at our events,
especially the women's category at FINA competitions.'' The
international governing body for track and field recently took
similar steps.\13\ And yet, Democrats in Congress and the Biden
administration are determined to ignore the emerging
international consensus and the science in order to advance
discriminatory policies against women.
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\12\https://www.cnn.com/2022/06/19/us/fina-vote-transgender-
athletes#::text=The%20new%20
gender%20inclusion%20policy,on%20the%20puberty%20Tanner%20Scale.
\13\https://www.nbcnews.com/nbc-out/out-news/track-governing-body-
bans-transgender-
women-athletes-rcna76432.
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H.R. 734, THE PROTECTION OF WOMEN AND GIRLS IN SPORTS
ACT OF 2023
The Committee on Education and the Workforce is advancing
this legislation to protect Title IX and the integrity of
women's athletics. Women fought long and hard for equal
athletic opportunity. Unfortunately, girls are losing trophies,
podium spots, public recognition, opportunities to compete, and
scholarship opportunities as incidents of males dominating
girls' athletic competitions when competing as females are
increasing nationwide. Women and girls deserve the opportunity
to comfortably experience the camaraderie of being part of a
team, but allowing males to compete with girls disrupts the
healthy competition and teamwork that allow teams to thrive.
Ignoring the biological differences between men and women
is a catastrophe for women. It destroys a level playing field
and makes women second class citizens in their own sports. This
bill clarifies that protecting women from discrimination under
Title IX means recognizing the term ``sex'' consistently with
Congress's intent. The bill further clarifies that forcing
females to compete against males violates Title IX's
prohibition against sex discrimination. This bill should not be
necessary. This was settled law for nearly 50 years. Yet now,
fairness and women's equal access to athletic opportunities are
again threatened, and Committee Republicans are committed to
reestablishing the protections guaranteed under Title IX.
CONCLUSION
To protect women's and girls' opportunity to compete
athletically, H.R. 734, the Protection of Women and Girls in
Sports Act of 2023, strengthens Title IX's existing protections
for women and ensures a level playing field for female
athletes. Over the last 50 years, Title IX has paved the way
for tremendous strides in access to education, scholarships,
athletics, and more for millions of students across the
country. The intent of Title IX, an education free from sex
discrimination, remains as clear now as it was when it was
first signed into law. However, the Biden administration's
proposed regulations and the radical left's broader agenda are
undermining athletic opportunities for women. This legislation
is absolutely essential for restoring and upholding the intent
of Title IX. Our women and girls deserve nothing less.
Summary
H.R. 734 SECTION-BY-SECTION SUMMARY
Section 1. Short title
This Act may be cited as the ``Protection of Women
and Girls in Sports Act of 2023''.
Section 2. Amendment
A substitute amendment that makes one technical
change:
Adds a violation for a federal recipient
of federal financial assistance to operate, sponsor, or
facilitate athletic programs that permit a male to
participate in such programs that are designated for
women or girls.
Adds that sex in the subsection is
recognized solely on a person's reproductive biology at
birth.
Adds that the section does not prohibit
males from participating in training with a women-
designated program as long as a female is not deprived
of a team roster spot.
Explanation of Amendments
The amendments, including the amendment in the nature of a
substitute, are explained in the body of this report.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. H.R. 734 takes important steps to protect girls and
women in athletic programs that are designated for girls or
women.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. This issue is addressed in the CBO letter.
Earmark Statement
H.R. 734 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of House rule XXI.
Roll Call Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendments offered to the measure or matter the
total number of votes for and against and the names of the
Members voting for and against.
Statement of General Performance Goals and Objectives
In accordance with clause (3)(c) of House rule XIII, the
goal of H.R. 734 is to protect athletic opportunities for girls
and women.
Duplication of Federal Programs
No provision of H.R. 734 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the committee's oversight findings and recommendations are
reflected in the body of this report.
Required Committee Hearing and Related Hearings
In compliance with clause 3(c)(6) of rule XIII the
following hearing held during the 118th Congress was used to
develop or consider H.R. 734: ``American Education in Crisis''.
The following related hearings were held: ``Examining the
Policies and Priorities of the U.S. Department of Education
(2021)'' and ``Examining the Policies and Priorities of the
U.S. Department of Education'' (2022).
New Budget Authority and CBO Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the committee has received
the following estimate for H.R. 734 from the Director of the
Congressional Budget Office:
H.R. 734 would amend Title IX of the Education Amendments
of 1972, which prohibits discrimination based on sex in
education programs or activities that receive federal financial
assistance. As a condition of federal funding, H.R. 734 would
require such institutions to prohibit a person whose biological
sex at birth was male from participating in an athletic program
or activity that is designated for women or girls, unless such
participation does not deny a female of an opportunity or
benefit to participate.
Title IX applies to local education agencies, elementary
and secondary schools, post-secondary institutions, libraries,
and other educational institutions that receive federal funds.
The primary means of enforcing compliance with Title IX is
through voluntary agreements between institutions and the
enforcing agency, and termination of federal funds is a last
resort.
Spending subject to appropriation: Enacting H.R. 734 could
result in a decrease in estimated authorizations for programs
administered by several agencies, including the Department of
Education. This would result from institutions failing to
comply with, or choosing to forgo federal funding by not
complying with, the requirements in the bill. CBO has no basis
to estimate whether or how many institutions would do so. CBO
estimates that, on average, K-12 schools receive $275,000 each
year in federal funds from programs under title I of the
Elementary and Secondary Education Act.
Direct spending: The requirement set forth in H.R. 734 also
would apply to federal student aid at postsecondary
institutions and funding for child nutrition programs at K-12
schools.
Students who enroll in programs at institutions of higher
education that meet certain criteria may receive federal
student aid in the form of Pell grants or student loans that
can be used to cover expenses at such eligible institutions.
According to data from the office of Federal Student Aid, in
year 2021-2022, higher education institutions received $108
billion in federal grant and loans, including Pell grants and
federal direct student loans. (About 20 percent of that total
was provided for Pell grants in the annual appropriation act
and is thus classified as discretionary spending.)
Under the National School Lunch Program (NSLP), the School
Breakfast Program (SBP), the Child and Adult Care Food Program,
the Summer Food Service Program, and the Special Milk Program,
the government provides commodities and cash payments to
reimburse participating schools and institutions for at least
part of the cost of each meal served. CBO estimates that the
average school that participates in the NSLP and SBP will
receive about $121,800 in 2024 under those programs.
Enacting H.R. 734 could result in a reduction in direct
spending through a similar mechanism as spending subject to
appropriations, but CBO has no basis to predict whether, or how
many, K-12 schools and postsecondary institutions would not
comply with the requirement. As a result, CBO cannot estimate
the savings related to schools not complying with that
requirement.
The CBO staff contact for this estimate is Garrett
Quenneville. The estimate was reviewed by H. Samuel Papenfuss,
Deputy Director of Budget Analysis.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 734. However,
clause 3(d)(2)(B) of that rule provides that this requirement
does not apply when, as with the present report, the committee
has included in its report a timely submitted cost estimate of
the bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
EDUCATION AMENDMENTS OF 1972
* * * * * * *
TITLE IX--PROHIBITION OF SEX DISCRIMINATION
sex discrimination prohibited
Sec. 901. (a) No person in the United States shall, on the
basis of sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial
assistance, except that:
(1) in regard to admissions to educational
institutions, this section shall apply only to
institutions of vocational education, professional
education, and graduate higher education, and to public
institutions of undergraduate higher education;
(2) in regard to admissions to educational
institutions, this section shall not apply (A) for one
year from the date of enactment of this Act, nor for
six years after such date in the case of an educational
institution which has begun the process of changing
from being an institution which admits only students of
one sex to being an institution which admits students
of both sexes, but only if it is carrying out a plan
for such a change which is approved by the Commissioner
of Education or (B) for seven years from the date an
educational institution begins the process of changing
from being an institution which admits only students of
only one sex to being an institution which admits
students of both sexes, but only if it is carrying out
a plan for such a change which is approved by the
Commissioner of Education, whichever is the later;
(3) this section shall not apply to an educational
institution which is controlled by a religious
organization if the application of this subsection
would not be consistent with religious tenets of such
organization;
(4) this section shall not apply to an educational
institution whose primary purpose is the training of
individuals for the military services of the United
States, or the merchant marine;
(5) in regard to admissions this section shall not
apply to any public institution of undergraduate higher
education which is an institution that traditionally
and continually from its establishment has had a policy
of admitting only students of one sex;
(6) this section shall not apply to membership
practices--
(A) of a social fraternity or social sorority
which is exempt from taxation under section
501(a) of the Internal Revenue Code of 1954,
the active membership of which consists
primarily of students in attendance at an
institution of higher education, or
(B) of the Young Men's Christian Association,
Young Women's Christian Association, Girl
Scouts, Boy Scouts, Camp Fire Girls, and
voluntary youth service organizations which are
so exempt, the membership of which has
traditionally been limited to persons of one
sex and principally to persons of less than
nineteen years of age;
(7) this section shall not apply to--
(A) any program or activity of the American
Legion undertaken in connection with the
organization or operation of any Boys State
conference, Boys Nation conference, Girls State
conference, or Girls Nation conference; or
(B) any program or activity of any secondary
school or educational institution specifically
for--
(i) the promotion of any Boys State
conference, Boys Nation conference,
Girls State conference, or Girls Nation
conference, or
(ii) the selection of students to
attend any such conference;
(8) this section shall not preclude father-son or
mother-daughter activities at an educational
institution, but if such activities are provided for
students of one sex, opportunities for reasonably
comparable activities shall be provided for students of
the other sex; and
(9) this section shall not apply with respect to any
scholarship or other financial assistance awarded by an
institution of higher education to any individual
because such individual has received such award in any
pageant in which the attainment of such award is based
upon a combination of factors related to the personal
appearance, poise, and talent of such individual and in
which participation is limited to individuals of one
sex only, so long as such pageant is in compliance with
other nondiscrimination provisions of Federal law.
(b) Nothing contained in subsection (a) of this section shall
be interpreted to require any educational institution to grant
preferential or disparate treatment to the members of one sex
on account of an imbalance which may exist with respect to the
total number or percentage of persons of that sex participating
in or receiving the benefits of any federally supported program
or activity, in comparison with the total number or percentage
of persons of that sex in any community, State, section, or
other area: Provided, That this subsection shall not be
construed to prevent the consideration in any hearing or
proceeding under this title of statistical evidence tending to
show that such an imbalance exists with respect to the
participation in, or receipt of the benefits of, any such
program or activity by the members of one sex.
(c) For purposes of this title an educational institution
means any public or private preschool, elementary, or secondary
school, or any institution of vocational, professional, or
higher education, except that in the case of an educational
institution composed of more than one school, college, or
department which are administratively separate units, such term
means each such school, college, or department.
(d)(1) It shall be a violation of subsection (a) for a
recipient of Federal financial assistance who operates,
sponsors, or facilitates athletic programs or activities to
permit a person whose sex is male to participate in an athletic
program or activity that is designated for women or girls.
(2) For the purposes of this subsection, sex shall be
recognized based solely on a person's reproductive biology and
genetics at birth.
(3) Nothing in this subsection shall be construed to prohibit
a recipient from permitting males to train or practice with an
athletic program or activity that is designated for women or
girls so long as no female is deprived of a roster spot on a
team or sport, opportunity to participate in a practice or
competition, scholarship, admission to an educational
institution, or any other benefit that accompanies
participating in the athletic program or activity.
* * * * * * *
MINORITY VIEWS
Introduction
Title IX of the Education Amendments of 1972 (Title IX)
states in part, ``[n]o person in the United States shall, on
the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial
assistance . . .''\1\ The question as to whether ``sex'' in the
context of Title IX includes sexual orientation and/or gender
identity has been the subject of court cases, federal
legislation, and administrative regulation. In 2020, the
Supreme Court held in Bostock v. Clayton County that under a
plain language interpretation of Title VII of the Civil Rights
Act of 1964 (Title VII) discrimination based on an employee's
sexual orientation or gender identity is indeed discrimination
based on sex.\2\ This holding has since been applied to Title
IX, which has been recognized to prevent discrimination on the
basis of sexual orientation or gender identity.\3\ Courts
across the country have held that Title IX requires schools to
treat transgender students consistent with their gender
identity.\4\
---------------------------------------------------------------------------
\1\20 U.S.C. Sec. 1681.
\2\Bostock v. Clayton County, 570 U.S. ___, 140 S. Ct. 1731 (2020).
\3\E.g., Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 616 (4th
Cir. 2020) (``After the Supreme Court's recent decision in Bostock v.
Clayton County, we have little difficulty holding that a bathroom
policy precluding Grimm from using the boys restrooms discriminated
against him `on the basis of sex.' Although Bostock interprets Title
VII of the Civil Rights Act of 1964, it guides our evaluation of claims
under Title IX.'' (citations omitted)).
\4\See Jamie Schultz, Title IX at 50: A Critical Celebration, 30
Women in Sport & Physical Activity J., 97, 101-02 (2022).
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H.R. 734, the Protection of Women and Girls in Sports Act
of 2023 would undo the holding of Bostock as it relates to
women's athletics in education programs or activities that
receive federal assistance. H.R. 734 weaponizes a landmark
civil rights law against transgender youth, a critically
marginalized population that federal courts have recognized
should be protected under the law, not discriminated against
with it.
Title IX and Equal Rights
The Bostock decision had immediate repercussions for Title
IX. Although distinct statutes, federal courts have recognized
that Title VII jurisprudence informs Title IX.\5\ As such,
multiple Federal Courts of Appeal have post-Bostock held that
discrimination ``on the basis of sex'' as defined by Title IX
also includes discrimination based on sexual orientation or
gender identity.\6\ The Departments of Justice and Education
have both issued similar determinations.\7\ When the Department
of Education (Department) issued a Notice of Proposed
Rulemaking (NPRM) on Title IX in 2022, it incorporated the
Bostock holding throughout the proposed rule, including in the
definitions of sex discrimination and sex based harassment.\8\
It is worth noting the 2022 Title IX NPRM purposefully did not
address the participation of transgender students in athletics,
with the Department announcing it would issue a proposed rule
specifically on that subject sometime in the first half of
2023.\9\ Instead of waiting for the issuance of that rule,
which the Department acknowledged would recognize the ``unique
circumstances of particular sports''\10\ but in a manner
consistent with Bostock, Committee Republicans marked up H.R.
734, a bill designed to circumvent Bostock altogether as it
pertains to transgender student participation in sports. The
Department has since announced a draft rule\11\ that would, in
direct contrast to H.R. 734 but consistent with the law,
``establish that policies violate Title IX when they
categorically ban transgender students from participating on
sports teams consistent with their gender identity just because
of who they are.''\12\ Additionally, the draft rule notes that
``there are some instances, particularly in competitive high
school and college athletic environments, some schools may
adopt policies that limit transgender students'
participation.''\13\ However, the proposed rule is clear that
the adoption of such policies must still ``protect[] students
from being denied equal athletic opportunity'' but provides
schools with the ability to create their own participation
policies.\14\
---------------------------------------------------------------------------
\5\E.g., U.S. Dep't of Justice, Title IX Legal Manual, Addendum
post-Bostock: Editors Note, Updated Aug. 12, 2021, https://
www.justice.gov/crt/title-ix#Bostock.
\6\Id.
\7\Id.
\8\U.S. Dep't. of Educ., Summary of Major Provisions of the
Department of Education's Title IX Notice of Proposed Rulemaking,
https://www2.ed.gov/about/offices/list/ocr/docs/t9nprm-chart.pdf.
\9\81 Fed. Reg. 41,390, 41,537, Jul. 12, 2022 (``The Department
does not propose any particular changes to Sec. 106.41 at this time.
The Department instead plans to issue a separate notice of proposed
rulemaking to address whether and how the Department should amend
Sec. 106.41 in the context of sex-separate athletics, pursuant to the
special authority Congress has conferred upon the Secretary to
promulgate reasonable regulations with respect to the unique
circumstances of particular sports.'').
\10\Id.
\11\``Nondiscrimination on the Basis of Sex in Education Programs
or Activities Receiving Federal Financial Assistance: Sex-Related
Eligibility Criteria for Male and Female Athletic Teams,'' Proposed
Rule, Docket ID ED-2022-OCR-0143, [Fed. Reg. Vol. __, No. __, April __,
2023], available at https://www2.ed.gov/about/offices/list/ocr/docs/t9-
ath-nprm.pdf (note: as of the drafting of these Minority views, the
proposed rule had been sent to the Federal Register, but not yet
published).
\12\U.S. Dep't of Educ., FACT SHEET: U.S. Department of Education's
Proposed Change to its Title IX Regulations on Students' Eligiblity for
Athletic Teams (April 6, 2023), https://www.ed.gov/news/press-releases/
fact-sheet-us-department-educations-proposed-change-its-title-ix-
regulations-students-eligibility-athletic-teams.
\13\Id.
\14\Id.
---------------------------------------------------------------------------
School-based sports and physical education play an
important role in youth development and can contribute to
physical, social, and intellectual health. However, the
majority of LGBTQ youth experience harassment in school
athletics, which increases the risks of mental health concerns
and discourages physical activity.\15\ Large scale studies have
found that as high as 82% of LGB athletes experience serious
harassment and discrimination in a sports context.\16\ It is
thus unsurprising that roughly two-thirds or 68% of LGBTQ
identified youth have never taken part in any school or
community sports.\17\ This is a much higher rate of non-
participation than their peers. LGBTQ youth who do participate
in school sports report feeling less safe in athletic spaces
due to bullying and harassment.\18\ LGBTQ youth also often
experience bathrooms and locker rooms as sites of social
vulnerability and violence.\19\
---------------------------------------------------------------------------
\15\Scott B. Greenspan, et al., LGBTQ Youths' School Athletic
Experiences: A 40-year Content Analysis in Nine Flagship Journals, 11
J. of LGBT Issues in Counseling 190, 191 (2017).
\16\Erik Denison, et al., Reviewing evidence of LGBTQ+
discrimination and exclusion in sport, 24 Sport Management Rev. 389,
393 (2021).
\17\Dawn Ennis, Why Are LGBTQ Youth Avoiding Sports In School? Fear
Of Discrimination, Research Shows, Forbes (Sept. 15, 2021), https://
www.forbes.com/sites/dawnstaceyennis/2021/09/15/why-are-lgbtq-youth-
avoiding-sports-in-school-fear-of-discrimination-research-shows/?
sh=495e97e34195.
\18\Alex Kulick, et al., Three strikes and you're out: Culture,
facilities, and participation among LGBTQ youth in sports, 24 Sport,
Education & Society 939, 949 (2018).
\19\Id. at 942.
---------------------------------------------------------------------------
Transgender students experience even more fear and
harassment than LGB students and research supports that anti-
discrimination policies can reduce the harassment and encourage
sport participation.\20\ The American Medical Society for
Sports Medicine issued a position statement in 2020 on the need
to address LGBTQ discrimination in sport.\21\ It is shameful
that H.R. 734, a bill that furthers such discrimination, was
the first bill that this Committee marked up in the 118th
Congress. To add insult to injury, the bill uses the aegis of
protecting girls and women in sports, an admirable policy goal
that is worthy of consideration by the Committee, to then do
nothing other than discriminate against trans athletes.
---------------------------------------------------------------------------
\20\Id. at 940, 947-49.
\21\Denison, supra note 12, at 394.
---------------------------------------------------------------------------
Title IX and Women's Sports
It is hard to overstate the transformational effect Title
IX has had on American society. In its 50-year history, Title
IX has created opportunities for millions of women and girls to
participate in sports at the high school and college levels. By
2016, two in every five girls in the United States played
sports.\22\ This has in turn helped create and sustain women's
professional athletic leagues and associations.\23\ The pursuit
of equality of opportunity for girls and women in sports has
had attendant effects on the pursuit of women's rights in
America generally. The skills, traits and other lessons that
flow from sports participation have helped women athletes
succeed not only in professional sports arenas, but in
workplaces, boardrooms, and legislative chambers.\24\
---------------------------------------------------------------------------
\22\Women's Sport Foundation, Title IX and the Rise of Female
Athletes in America, (Sept. 2, 2016) https://
www.womenssportsfoundation.org/education/title-ix-and-the-rise-of-
female-athletes-in-america/.
\23\E.g., Sarah Pruitt, How Title IX Transformed Women's Sports,
History.com (June 23, 2022) https://www.history.com/news/title-nine-
womens-sports.
\24\See, e.g., Women's Sports Foundation, 50 Years of Title IX:
We're Not Done Yet 15, 2021 https://www.womenssportsfoundation.org/wp-
content/uploads/2022/05/Title-IX-at-50-Report-FINALC-v2-.pdf (``Girls''
retention in sports greatly impacts their future growth outside of
sports. Explicitly, girls build personal quality traits like team
leadership, collaboration, and self confidence through sports
participation and learn pertinent professional skills that lead to
their success in careers after college as well as support their
personal growth throughout life . . . In a survey of 400 women
executives, 94% reported having competed as athletes. Among women C-
suite executives, 52% played college sports while 39% of the women
working at the management level played college sports''); Shia Kapos,
Athletes in Congress talk women and sports, Politico, July 16, 2021.,
https://www.politico.com/newsletters/women-rule/2021/07/16/sharice-
davids-cheri-bustos-lori-trahan-athletes-politics-493615.
---------------------------------------------------------------------------
Further, while the public may recognize the law's impact on
sports primarily, Title IX prohibits sex discrimination in all
vestiges of education; it has helped secure advancements for
women in academic and career fields traditionally dominated by
men and provided procedural and substantive rights for victims
of sex discrimination, sex harassment and sexual assault in
educational settings, irrespective of their gender.\25\
---------------------------------------------------------------------------
\25\50 Years of Title IX, supra note 20, at 7 (``Pathways once
closed or significantly inaccessible to women have opened as Title IX
created greater access to academic pursuits leading to careers in an
array of occupations for women, including but not limited to
astronauts, athletes, carpenters, chief executive officers,
construction workers, doctors, engineers, entrepreneurs, farmers,
filmmakers, firefighters, football coaches, investors, journalists,
lawyers, musicians, police officers, military personnel, rock stars,
Supreme Court justices, and television news anchors.''); U.S. Dep't of
Justice, Title IX Legal Manual D. Sexual Harassment, Updated Aug. 12,
2021, https://www.justice.gov/crt/
title-.ix#D.%C2%A0%20Sexual%20Harassment.
---------------------------------------------------------------------------
Despite the progress made under Title IX, there are still
numerous obstacles to true equality for girls and women in
educational settings, especially high school and college
sports. While girls'' participation in sport has increased
1000% since Title IX, their participation numbers have still
not reached that of boys' 50 years ago.\26\ At its half-century
mark, approximately 90% of all educational institutions are not
in compliance with Title IX.\27\ Many top athletic programs
spend 40 50% more in support of their men's teams than their
comparable women's teams.\28\ Schools across the country apply
the law selectively, sometimes inflating numbers to give the
illusion of equity where it does not exist.\29\ Additionally, a
lack of enforcement, particularly on issues of sexual abuse and
bigotry, has obstructed IX's potential to normalize equal
treatment across sex and gender in education.\30\
---------------------------------------------------------------------------
\26\Nat'l. Ctr. for Educ. Stats., Fast Facts: Title IX, https://
nces.ed.gov/fastfacts/
display.asp?id=93.
\27\Schultz, supra note 4, at 97.
\28\Id.
\29\Zara Abrams, Title IX: 50 Years Later, Am. Psych. Ass'n. News &
Advocacy (June 28, 2022) https://www.apa.org/news/apa/2022/title-ix-
landmark.
\30\ Anne Blaschke, Title IX has been spectacularly successful and
disturbingly unfulfilled, Wash. Post, June 23, 2022, https://
www.washingtonpost.com/outlook/2022/06/23/title-ix-has-been-
spectacularly-successful-disturbingly-unfulfilled/.
---------------------------------------------------------------------------
Female athletes and their advocates continue to campaign
for equal access to participation opportunities in sports and,
once they are participants, equitable treatment compared to
their male counterparts.\31\ Whether it is the four-time World
Champion U.S. Women's National Soccer Team filing a successful
pay discrimination complaint against U.S. Soccer with the Equal
Employment Opportunity Commission (EEOC),\32\ or student
athletes in the NCAA Women's Basketball National Tournament
taking to social media to document the inequitable training
facilities they were offered,\33\ women athletes continue to
experience inequitable treatment in sports and too often must
take it upon themselves to fight discrimination. It is for
these reasons that Committee Democrats offered several
amendments to H.R. 734, to attempt to live up to the aims of
the bill's title--namely the protection of women and girls in
sports.
---------------------------------------------------------------------------
\31\50 Years of Title IX, supra note 20, at 28.
\32\Rachel Triesman, The U.S. national women's soccer team wins $24
million in equal pay settlement, NPR, Feb. 22, 2022, https://
www.npr.org/2022/02/22/1082272202/women-soccer-
contracts-equal-pay-settlement-uswnt.
\33\Emine Yucel, Men's And Women's NCAA March Madness Facilities,
Separate And Unequal, Spark Uproar, NPR, Mar. 29, 2021, https://
www.npr.org/2021/03/19/979395795/mens-and-
womens-ncaa-march-madness-facilities-separate-and-unequal-spark-uproar.
---------------------------------------------------------------------------
The first was the Democratic substitute, offered by Rep.
Alma Adams (D-NC), modeled after her bill the Fair Play for
Women Act.\34\ The Adams amendment expanded reporting
requirements for K-12 and college athletics data, and made all
information easily accessible to the public, so students and
parents could see how schools are claiming Title IX compliance
with the hopes that such sunlight would expose athletic
programs that are using fuzzy math to appear Title IX
compliant. Further the amendment would make athletic
associations like the National College Collegiate Association
(NCAA) explicitly liable under Title IX as we know some of the
more famous examples of disparities in women's and men's
athletics have come to light during NCAA events. The Adams
amendment provided a private right of action for athletes to
push for change at their schools, and also empowered the
Department to levy fines on colleges it found non- compliant
with Title IX. And perhaps most importantly, the bill would
have required annual Title IX training for athletes, and
athletic department and athletic association staff, so that all
coaches, trainers, and other personnel would know their
responsibilities under Title IX, fostering a culture of
compliance. The Chair ruled that the Adams amendment was not
germane to the fundamental purpose of the underlying bill,
preventing trans girls and women from participating in girls'
and women's sports.
---------------------------------------------------------------------------
\34\H.R. 9615, 117th Cong. (2022).
---------------------------------------------------------------------------
Rep. Mark Takano (D-CA) offered two amendments designed to
build upon the protections of Title IX for women and girls. The
first amendment codified the existing regulations related to
athletics promulgated under Title IX.\35\ While these
regulations are long standing, they are often the very
regulations that schools are not in compliance with, sustaining
the disparities between men's and women's athletic programs.
Female athletes and their advocates continue to campaign for
equal access to participation opportunities in sports and, once
they are participants, equitable treatment compared to their
male counterparts.\36\ Whether it is the four- time World
Champion U.S. Women's National Soccer Team filing a successful
pay discrimination complaint against U.S. Soccer with the Equal
Employment Opportunity Commission (EEOC),\37\ or student
athletes in the NCAA Women's Basketball National Tournament
taking to social media to document the inequitable training
facilities they were offered,\38\ women athletes continue to
experience inequitable treatment in sports and too often must
take it upon themselves to fight discrimination.
---------------------------------------------------------------------------
\35\Athletics, 34 C.F.R. Sec. 106.41.
\36\50 Years of Title IX, supra note 20, at 28.
\37\Rachel Triesman, The U.S. national women's soccer team wins $24
million in equal pay settlement, NPR, Feb. 22, 2022, https://
www.npr.org/2022/02/22/1082272202/women-soccer-
contracts-equal-pay-settlement-uswnt.
\38\Emine Yucel, Men's And Women's NCAA March Madness Facilities,
Separate And Unequal, Spark Uproar, NPR, Mar. 29, 2021, https://
www.npr.org/2021/03/19/979395795/mens-and-
womens-ncaa-march-madness-facilities-separate-and-unequal-spark-uproar.
---------------------------------------------------------------------------
Recognizing the numerous instances where educational
programs may fall short of the mark protecting the rights of
athletes, in early 2023 the Department issued resource
documents for schools and colleges to help them ``evaluate
whether a school is meeting its legal duty to provide equal
athletic opportunity based on sex consistent with Title
IX.''\39\ The documents provide an extensive overview of the
benefits, opportunities, and treatment men's and women's teams
may receive and offer examples and queries to help determine
whether a school is meeting its Title IX obligations. It
provides worksheets to analyze whether a school is meeting
obligations related to athletic scholarships and financial
assistance, and meeting the interests and abilities of student
athletes.\40\ These documents, while illustrative and helpful,
do not carry the force of law.
---------------------------------------------------------------------------
\39\U.S. Dept. of Educ., Off. for Civ. Rts., Title IX and Athletic
Opportunities in K-12 Schools, Feb. 2023 https://www2.ed.gov/about/
offices/list/ocr/docs/ocr-k12.
\40\Id.
---------------------------------------------------------------------------
By codifying the existing Title IX athletic regulations
into law, the Committee could signal that we were prepared to
build upon the 50 years of progress under Title IX, with the
expectation that the Department could provide more clarity to
schools in a new round of regulation of how they can work to
ensure equity in athletics, protecting women and girls in
sports. The Chair ruled that the Takano amendment was not
germane to the fundamental purpose of the underlying bill,
preventing trans girls and women from participating in girls'
and women's sports.
The second Takano amendment simply expressed a sense of
Congress that all people should have the right to participate
in sports free from discrimination, and that student athletes
have particular rights to train and play in safe environments,
be treated with dignity and respect, retain a right to privacy
over their bodies, and that all students, including transgender
students, should be protected. Again, the Chair ruled that this
language was non-germane to the underlying bill.
Rep. Suzanne Bonamici (D-OR) offered an amendment that both
protected women and spoke to the practicality of H.R 734--in a
world where H.R. 734 became law, how would schools determine
whether an athlete's ``sex is male''?\41\ As the bill defines
sex as based ``solely on a person's reproductive biology and
genetics at birth'',\42\ supporters of H.R. 734 would suggest
that simply providing the sex assigned at birth on a birth
certificate would be sufficient proof. But we know of the
approximately 3.6 million births in the U.S. every year, a
considerable number of children are born either intersex or
with ambiguous genitalia.\43\ This does not include children
born with chromosomal variations other than XX and XY which may
only present themselves later in life. This would suggest
before even considering trans athletes, birth certificates will
not accurately reflect the ``biological'' or ``genetic'' sex of
all children. Recognizing this, enforcement of H.R. 734 will
likely require female student athletes to either subject
themselves to genital examination or to disclose their
menstruation data--both enforcement mechanisms that have been
proposed as part of trans sports bans at the state level.\44\
Rep. Bonamici's amendment would have foreclosed on the latter,
but it was defeated.
---------------------------------------------------------------------------
\41\H.R. 734 Sec. 2, 118th Cong. (2023).
\42\Id. When not directly quoting bill text, this report will use
the terminology ``sex assigned at birth'' a term the medical community
has determined is more inclusive of the variety of sex and gender
possibilities we realize are possible. University of Washington
Medicine, LGBTQ+ Inclusion: Glossary, (2023) https://
www.uwmedicine.org/practitioner-resource/lgbtq/lgbtq-
inclusion-glossary.
\43\Based on statistics for the number of live births in the US in
2021, and rates of birth of intersex children and children with
ambiguous genitalia, there are approximately 2,600 to 6,000 births each
year in the U.S. where a child's genitalia may not correspond with
either a male or female assigned sex. Cleveland Clinic, Atypical
Genitalia (Formerly Known as Ambiguous Genitalia), Mar. 29, 2022,
https://my.clevelandclinic.org/health/diseases/22470-atypical-
genitalia-formerly-known-as-ambiguous-genitalia (``Atypical genitalia
occurs in about 1 out of every 1,000 to 4,500 births''); Intersex
Society of North America, How common is Intersex, (2008) https://
isna.org/faq/frequency/ (``If you ask experts at medical centers how
often a child is born so noticeably atypical in terms of genitalia that
a specialist in sex differentiation is called in, the number comes out
to about 1 in 1500 to 1 in 2000 births.'').
\44\See, e.g., Philip Marcelo, Florida weighs mandating menstrual
cycle details for female athletes, Associated Press, Feb. 3, 2023;
Aleks Phillips, Kansas GOP Bill Authorizes Genital Exams of
Schoolchildren, Critics Say, Newsweek, Apr. 6, 2023.
---------------------------------------------------------------------------
HR 734 Is Not About Protecting Women's Sports
THE FAULTY ASSUMPTIONS OF H.R. 734
Unfortunately, the theory behind H.R. 734 is that the
participation of trans women in girls' and women's sports is
the policy issue from which these sports need the most urgent
``protection''.
Further this need to protect sports justifies the decision
to make the bill the first to be marked up in the 118th
Congress. Putting aside the blatant offensiveness of such a
policy argument for the moment, it is important to note
multiple points.
First, transgender youth are a tiny fraction of the youth
population in this country (roughly 1.8%), and an even smaller
fraction of that already small population are involved in
athletics.\45\ It appears there are only 35 documented
instances of out trans athletes competing at the collegiate
level.\46\ To suggest that the participation of 35 women
athletes among the approximately 110,000 women athletes that
compete yearly in college sports somehow justifies
congressional action at this time is ludicrous. Experts in the
field of genetics, science, and sport have stated that
discrimination against transgender student athletes is not
based on science.\47\ Additionally, participation in sports has
significant benefits for transgender students including higher
academic performance and lower rates of depression and
suicidality.\48\ Many regional and national athletic
associations are establishing or revisiting polices on gender
equity and non-discrimination in athletic participation at this
time.\49\ This is an important step in the development of
policy and there is no urgency that suggests Congress need
involve itself at this time.
---------------------------------------------------------------------------
\45\Based on questionnaire data collected by the Centers for
Disease Control and Prevention as part of the 2017 Youth Risk Behavior
Survey conducted in 10 U.S. states and 9 large urban school districts.
The survey defined ``transgender'' individuals as those whose gender
identity does not align with their sex. ``Across the 19 sites, 94.4%
(range = 94.0%-94.8%) of students responded ``No, I am not
transgender''; 1.8% (range = 1.0%-3.3%) responded ``Yes, I am
transgender''; 1.6% (range = 0.9%-2.5%) responded ``I am not sure if I
am transgender''; and 2.1% (range = 1.5%-4.7%) responded ``I do not
know what this question is asking.'' Ctrs. for Disease Control &
Prevention, Morbidity and Mortality Weekly Report: Transgender Identity
and Experiences of Violence Victimization, Substance Use, Suicide Risk,
and Sexual Risk Behaviors Among High School Students--19 States and
Large Urban School Districts, 2017, (Jan. 25, 2019), https://
www.cdc.gov/mmwr/volumes/68/wr/mm6803a3.htm.
\46\Cyd Zeigler & Karleigh Webb, These 35 trans athletes have
competed openly in college, Outsports, Mar. 29, 2023, https://
www.outsports.com/trans/2022/1/7/22850789/trans-athletes-
college-ncaa-lia-thomas (``Outsports knows there are countless other
trans athletes who have competed at the collegiate level who have not
been publicly out or out to teammates.'')
\47\Tinbete Ermyas & Kira Wakeham, Wave of Bills to Block trans
Athletes Has No Basis In Science, Researcher Says, NPR, Mar. 18, 2021,
https://www.npr.org/2021/03/18/978716732/wave-of-new-bills-say-trans-
athletes-have-an-unfair-edge-what-does-the-science-s.
\48\Schultz, supra note 4, at 101.
\49\E.g., Press Release, NCAA, Board of Governors updates
transgender participation policy, Jan. 19, 2022, https://www.ncaa.org/
news/2022/1/19/media-center-board-of-governors-updates- transgender-
participation-policy.aspx.
---------------------------------------------------------------------------
This is especially true as we know transgender youth are
currently experiencing challenges to nothing less than their
right to exist. H.R. 734 is just one of many proposals that
collectively aim to ostracize trans youth and trans individuals
from the public arena.\50\ Research shows that due to stigma,
trans youth experience depression and suicidal ideation at
disproportionate rates compared to their peers.\51\ Recent data
from the CDC show that transgender youth are 10 times more
likely to experience homelessness.\52\ Transgender students are
also more likely to feel unsafe at school, to experience
bullying and other forms of violence including being threatened
with a weapon at school, and social isolation. Experiences of a
hostile school climate, potentially compounded by an unstable
living situation, lead to disproportionate drop out rates for
these students.\53\ Barriers to attaining school success have
not inspired our Republican colleagues to create policies to
improve outcomes for this group of students. Rather, around the
country we see organized attacks against these students. In the
first three months of 2023, more than 380 anti-transgender
state bills have been introduced, including a bill in Florida
that would remove transgender children from their homes if
their parents support and affirm them.\54\
---------------------------------------------------------------------------
\50\A Congress.gov search of ``biological sex'', a term known not
to be inclusive of the LGBTQ+ community was used in least eight bills
introduced in the 117th Congress, including H.R. 8731, Protect
Children's Innocence Act, H.R. 8171, Protect Minors from Medical
Malpractice Act of 2022, and H.R. 1926 Protecting Children From
Experimentation Act of 2021. https://www.congress.gov/quick-search/
legislation?wordsPhrases=%22biological+sex%22&word
Variants=on&congressGroups%5B%5D=0&congresses%5B%5D=117&legislation
Numbers=&legislativeAction=&sponsor=on&representative=&senator=.
\51\Brooke Migdon, Transgender Children Are More Likely to Fce
Mental Health Challenges, Study Says, The Hill, Jul. 22, 2022, https://
thehill.com/changing-america/well-being/mental- health/3570956-
transgender-children-are-more-likely-to-face-mental-health-challenges-
study-says/.
\52\Carolyn Jones, Transgender Youth Almost 10 Times More Likely to
be Homeless as Their Peers, Data Shows, EDSource, June 7, 2021, https:/
/edsource.org/updates/transgender-youth-
almost-10-times-more-likely-to-be-homeless-as-their-peers-data-shows.
\53\ U.S.Dep't. of Health and Hum. Svcs., Off. of Disease
Prevention and Health Promotion, Social Determinants of Health
Summaries: Graduation, https://health.gov/healthypeople/priority-areas/
social-determinants-health/literature-summaries/high-school-graduation.
\54\James Factora, Florida Lawmakers Proposed Allowing Trans Kids
to be Removed from Supportive Parents, Them, Mar. 8, 2023, https://
www.them.us/story/florida-bill-trans-kids-
supportive-parents.
---------------------------------------------------------------------------
Bills targeting curriculum inclusion, often referenced as
``Don't Say Gay'' bills, censor teacher's speech by prohibiting
mention of LGBTQ people or gender diversity in their
classrooms. The American Library Association reports that
attempts to ban books in schools are up four-fold with the top
three most banned books addressing themes of transgender
identity or gender non-conformity.\55\ Twenty states now
prohibit transgender students from participating in school
sports aligned with their gender.\56\ The focus of these
coordinated attacks was made all the more clear in early March
2023, when a speaker announced from the Conservative Political
Action Conference stage that ``transgenderism must be
eradicated from public life entirely.''\57\ This bill is an
attempt to draw the federal government into the on-going GOP
attacks on transgender people. Discriminating against a
specific minority group with whom the Majority disagrees cannot
be a legitimate governmental interest. For all these reasons,
Rep. Pramila Jayapal (D-WA) offered the last Democratic
amendment to rename the bill the Stigmatizing Vulnerable
Children Act of 2023. The amendment was defeated.
---------------------------------------------------------------------------
\55\Miranda Mazariegos & Meghan Collins Sullivan, Efforts to Ban
Books Jumped an `Unprecedented' Four-fold in 2021, ALA Report Says,
NPR, Apr. 4, 2022, https://www.npr.org/2022/04/04/1090067026/efforts-
to-ban-books-jumped-an-unprecedented-four-fold-in-2021-ala-report-says.
\56\Movement Advancement Project, ``Bans on Transgender Youth
Participation on Sports'', https://www.lgbtmap.org/equality-maps/
sports_participation_bans, (last visited, April 7, 2023).
\57\ Diana Goetsch, Opinion: What the CPAC Speaker Meant When He
Said `Transgenderism Must Be Eradicated', L.A. Times, Mar. 8, 2023,
https://www.latimes.com/opinion/story/2023-03-08/transgender-cpac-
michael-knowles-rolling-stone-ron-desantis.
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Last but most important to the stated policy goal of H.R.
734, the majority of women athletes and their advocates do not
consider the participation of transgender youth in women's
sports an existential threat to their survival.\58\ To the
contrary, many woman's groups have recognized that inclusion of
trans youth is an opportunity to share the attendant benefits
of sports participation with all women regardless of their
gender identity.
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\58\E.g., Women's Sports Foundation, Participation of Transgender
Athletes in Women's Sports, https://www.womenssportsfoundation.org/wp-
content/uploads/2016/08/participation-of-transgender-athletes-in-
womens-sports-the-foundation-position.pdf.
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Democratic Amendments Offered During Markup of H.R. 734
Committee Democrats offered five amendments to improve the
bill. These amendments would have refocused the bill on issues
that Women athletes have actually advocated for to protect
their sports. Committee Republicans rejected two of the five
amendments, and ruled the others out of order. Ranking Member
Scott noted during consideration of H.R. 734 that simply
because an amendment was not germane, that did not require the
Chair to rule it as such, and if it improved the bill, it
should get an up or down vote on its inclusion. The Chair was
not willing to do that. These are the Democratic amendments
that were considered:
----------------------------------------------------------------------------------------------------------------
Amendment Offered By Description Action Taken
----------------------------------------------------------------------------------------------------------------
2.................................... Ms. Adams.............. Democratic Substitute.. Ruled non-germane
3.................................... Ms. Bonamici........... Protection of student Defeated
athlete menstrual data.
4.................................... Mr. Takano............. Codification of Ruled non-germane
existing Title IX
Athletic equity
regulations.
5.................................... Mr. Takano............. Student Athletes Bill Ruled non-germane
of Rights.
6.................................... Ms. Jayapal............ Re-titled the bill..... Defeated
----------------------------------------------------------------------------------------------------------------
Conclusion
For the reasons stated above, Committee Democrats
unanimously opposed H.R. 734 when the Committee on Education
and the Workforce considered it on March 8, 2023. We urge the
House of Representatives to do the same.