It’s Time to Get Rid of Blanket Gender Identity Terminology… And Blanket Policy

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Halle Wagner (PPS ‘25)

By Halle Wagner (PPS ‘25)

The debate surrounding transgender athletes’ participation in sports should have never been a political one. But in a political climate reeking of selfishness and division, we tragically could not have expected anything short of this hateful, polarized controversy surrounding transgender athletes’ participation in competitive sports across the country.

This year, approximately 650 bills classified as anti-L.G.B.T.Q. have been proposed at the state level. At least 21 states have enacted laws that bar transgender students of all ages from participating in sports corresponding with how they identify.

Facing a storm of dispute, particularly about the safety and protection of female athletes of various ages and levels, the Biden administration was almost forced to act on the matter.

And it serves as a beacon of hope for transgender rights — and American democracy, nonetheless — that they responded in the right, nuanced way.

On April 6, 2023, the Biden administration released a long-awaited notice of proposed rulemaking regarding the participation of transgender athletes in school sports. The notice signified the administration’s first official stand on the debate concerning not only the liberties and rights of transgender athletes, but also the language of Title IX.

Everyone was eager to hear the U.S. Department of Education’s policy approach to this contentious debate. While the proposal would effectively prohibit schools from issuing blanket bans on transgender athletes in school sports ranging from elementary level to N.C.A.A. competition, the rule also permits schools to reject transgender athletes from competing on teams consistent with their gender identity when questions of fairness and physicality arise.

But the proposal was met with intense criticism from politicians and citizens on both sides of the aisle alike. Some transgender rights activists and democrats, including Representative Alexandria Ocasio-Cortez, were appalled by the proposal’s prospect of heightened discrimination against transgender athletes. Conservative leaders and some athletes expressed concern that the new rule would undermine the purpose of Title IX and the policy’s victories for women’s sports.

Contrary to the belief of Imara Jones, a transgender woman and political journalist who took to her podcast to criticize the proposal, President Biden did not “straddle the fence” on this human rights issue. He made a stand that acknowledges and reinforces the nuance of democracy and humanity. Here’s why.

Over the years, the perception of ‘gender’ and the conversation surrounding gender identity has changed from essentialism to social constructionism. Regardless of your belief — or disbelief — in the gender spectrum, it is hard to disagree that the concept of gender is a complex one. It’s a legal status, and associated with it are a whole bunch of societal expectations.

Nonetheless, a 2022 Pew Research Center study found that Americans’ views on gender identity and transgender issues mirror gender’s complexity and nuance. While 60% of survey respondents believed whether a person is a man or a woman is determined by sex assigned at birth, 64% of respondents also favored policies protecting trans people from discrimination.

Beneath a complex issue is usually a complex history. Gender is no exception. The fight for and enactment of Title IX is a cornerstone victory in the battle for equality and women’s rights. Similar champion moments have more recently occurred in the L.G.B.T.Q.-rights movement. In 2020, the U.S. Supreme Court ruled that the prohibition on sex discrimination in the Civil Rights Act of 1964 extends to sexual orientation and gender identity.

Nuanced issues with nuanced histories warrant nuanced responses. And the Biden administration provided precisely that in its proposed regulation.

Providing flexibility for school athletic programs and recognizing the inherent physical disparities associated with grade level, competition level, and different sports, the proposal did not alter the dogma of Title IX. Rather, the Biden administration embraced the nondiscriminatory, dynamic spirit of this landmark legislation by providing schools across the country with a framework to continue evolving their athletic participation policies.

While critics roar, many experts and L.G.B.T.Q. organizations are applauding the Biden administration’s move. Doriane Coleman, a Duke Law professor and co-founder of nonpartisan initiative The Women’s Sports Policy Working Group, commended the proposal’s aversion to a “one-size-fits-all” approach. Similarly, the nonprofit group GLBTQ Legal Advocates and Defenders issued a statement of support for the new rule, acknowledging the proposal as a step in the right direction for transgender athletes’ rights.

Indecision is often misconstrued with recognition of issue nuance in today’s harsh political arena. Rather than “straddling the fence” on the issue of transgender athlete participation in American schools, the Biden administration’s proposed policy response accounted for the fence’s various pickets.

Well done, Mr. Biden.

Halle Wagner (PPS ‘25) is from West Hartford, CT and an Undergraduate at Duke University’s Sanford School of Public Policy. This piece was submitted as an op-ed in the Spring ‘23 PUBPOL 301 course. This content does not represent the official or unofficial views of the Sanford School, Polis, Duke University, or any entity or individual other than the author.

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