Legal, legislative battles over transgender athletics have been front and center in 2023

A law took effect in Texas this month that bans transgender women from playing a woman's sport at the college level. It was similar to a 2021 law that banned athletes in public schools in that state from playing on any team that differed from the sex they were assigned to at birth.

This year has been the battleground for the debate on whether biological males who identify as females should be allowed to play female sports as politicians and the courts have grappled with the issue.

Many government agencies and transgender advocacy groups are pushing to allow boys who say they are girls to participate in sports previously reserved for females while polling shows that a majority of Americans are against it.

According to The Center Square Voters' Voice Poll of 2,500 registered voters across the U.S., a 2-to-1 majority oppose transgender women student-athletes competing in women's sports. The poll was released in August and conducted by Noble Predictive Insights.

A Gallup poll released in June found 69% say transgender athletes should only be allowed to compete on sports teams that align with their biological sex at birth.

At the core of the debate is the accusation of discrimination, transgender women being victims of it by those wishing to keep girls' women's sports played among women; and the accusation of fairness, girls and women being the victims when forced to compete against biological males.

“Women and young girls deserve to compete on a level playing field. When laws ignore biological reality and allow males to compete on girls’ sports teams, girls are harmed and denied athletic opportunities," Christiana Kiefer, senior counsel for Alliance Defending Freedom, wrote in an email to The Center Square. "Science and common sense tell us that males are generally bigger, faster, and stronger than females. They have larger hearts and lungs, denser bones, and stronger muscles. No amount of testosterone suppression can undo all those advantages. We hope that states continue to protect fairness in women’s sports by adopting laws and policies that reflect biological reality.”

The Alliance Defending Freedom is involved in a 2020 lawsuit in which it represented four female Connecticut high school athletes. They filed a lawsuit challenging the state athletic association's policy to allow boys to play girls' sports.

U.S. District Judge Robert Chatigny ruled against the female athletes in December. The Heritage Foundation reported that Chatigny ordered attorneys for the Alliance Defending Freedom to use the term "transgender females" when referring to boys who identify as girls.

The 2nd U.S. Circuit Court of Appeals initially ruled in favor of Connecticut's policy in 2022, but has since said it would reconsider the case; it is pending.

The Movement Advancement Project analyzes transgender sports policies across the country. It says the nation is split on the issue.

It found that 24 states and two territories have policies that are fair or favorable to transgender athletes and 26 states and three territories have policies that are not.

ESPN has tracked transgender legislation and reported that 23 states had passed laws restricting transgender athletes' ability to play sports since 2020.

In March, Democrats in the U.S. House introduced the Transgender Bill of Rights, a resolution that would "ensure" transgender athletes could participate in the sport of their choice. The Transgender Bill of Rights calls on the federal government to take action.

In April, Republicans in the U.S. House introduced House Resolution 734, the "Protection of Women and Girls in Sports Act 2023." It would ban boys, who call themselves transgender women, from playing in female sports. The House passed the bill; its road in the Senate is considered uphill with a Democratic majority in place.

In August, the North Carolina House and Senate overrode Democratic Gov. Roy Cooper's veto and passed the Fairness in Women's Sports Act. The law "prohibits male students from playing on middle school, high school, or collegiate athletics teams designated for females, women, or girls." It also "requires a student's sex to be recognized solely based on reproductive biology and genetics at birth for purposes of athletic participation."

The U.S. Department of Education supports transgender athletes being able to play on the sports team gender in which they identify. The department says banning transgender athletes from playing on a sports team due to gender is discrimination.

Discussion of the issue escalated around Lia Thomas, a swimmer at Penn University who competed on the men's team as William Thomas for three years. The athlete switched to Lia for a senior season, and was allowed by the university and the NCAA to compete in 2022.

Thomas was the first openly transgender athlete to win an NCAA Division I national championship in 2022. Thomas was ranked 65th in the 500-meter freestyle in 2018-19, the last season Thomas swam for the University of Pennsylvania men's team, according to Swimming World Magazine. Thomas won the NCAA championship in the women's 500 freestyle in 2022 while competing for the Penn women's team.

Other men competing in women's categories have lifted visibility for events from volleyball, to weight lifting to cycling to running.

The website SheWon.org tracks "achievements of female athletes who were displaced by males in women’s sporting events" all over the world. As of Sept. 22, it had 608 entries.

A 2010 report conducted by authors affiliated with the Women's Sports Foundation and The National Center for Lesbian Rights called concerns that transgender females playing female sports would dominate as "not well founded." The report stated that "medically guided hormonal treatment prior to puberty" neutralized any advantage.

Thirteen years later, the polls, many women athletes and lawyers like Kiefer disagree.

In Michigan, the high school association states it will determine eligibility on a "case-by-case" basis. The Michigan High School Athletic Association does ask for documentation of a student's medical and psychological records as well as whether they have undergone hormone therapy and gender-affirmation surgery.

In Ohio, the high school athletic association allows transgender athletes to compete for girls' teams, but the athlete must be taking a medically prescribed hormone treatment related to gender transition and have completed a minimum of one year of hormone treatment. The athlete must also "demonstrate" to the high school athletic association that the athlete "does not possess physical (bone structure, muscle mass, testosterone, hormonal, etc.) or physiological advantages over genetic females of the same age group."

The Women's Sports Foundation and AthleteAlly.org didn't respond to emails seeking comment.