How will transgender athletes be accommodated by Title IX and college basketball?
Debate continues as legislative opponents enact laws restricting participation
DALLAS — During a news conference before her team’s national semifinal game, LSU coach Kim Mulkey reflected on a hurtful childhood experience of being excluded because she was a girl.
At age 60, Mulkey said she still remembers the hurt.
“There are lots of memories when you’re growing up that are impactful,” she said “I think Dixie Youth Baseball was a big impactful moment in my life when I was kicked out of a dugout because I was a girl and it was the all-star game, and I couldn’t even sit in the dugout. The impact of that, I won’t ever forget.”
The slight was hardly a deterrent. Mulkey has had an extraordinary athletic career, in large part because of Title IX, which was passed when Mulkey was 10. Opportunities opened for female athletes and Mulkey excelled. She became an All-American point guard at Louisiana Tech University and won two national championships as a player, one in the Association for Intercollegiate Athletics for Women in 1981 and the other in the inaugural NCAA title game in 1982. As a head coach, Mulkey won three national titles at Baylor. In just her second year at LSU, she led the Tigers to the Division I national championship.
Since 1972, Mulkey has witnessed the explosive growth of women’s sports. Participation has increased, and opportunity and unfettered access to sports for girls and women have become the norm. Yet, as we celebrate the first women’s college basketball championship following the 50th anniversary of Title IX, a new challenge for women sports has emerged, one that was barely imagined 50 years ago: How will transgender athletes be accommodated by Title IX?
The issue of the inclusion of transgender athletes has become a bitter tug-of-war, one that has pitted federal law against aggressive state legislatures and has put traditional allies on opposite sides of the argument. Twenty states have passed legislation barring transgender students from participating in sports that align with their gender, not biological, identity.
The divide has raised questions about who determines sexual identity and if gender takes precedence over biological designation. How will governing bodies adjudicate the arguments over the distinction between biological sex and gender identification? Will Title IX accommodate transgender athletes as the 1972 law accommodated female athletes? Legislatures continue to pass laws prohibiting transgender athletes from competing on teams that correspond to their gender identities.
Title IX prohibits sex-based discrimination by education programs and activities receiving federal financial assistance. Five decades later, Title IX’s crucial clause – “No person shall, on the basis of sex …” – is open to different interpretations. In 2023, the legal challenges, as they relate to athletics, boil down to whether the protection extends to gender identity.
Over the weekend, I spoke about this to three coaches participating in the Women’s Final Four: Mulkey, South Carolina head coach Dawn Staley and Virginia Tech head coach Kenny Brooks. Politicians will make rules, but the voices of high-profile head coaches will ultimately make a difference.
During a media session, I asked Mulkey if the experience of being excluded as a young girl had impacted her attitude about the exclusion or inclusion of transgender athletes.
Mulkey was careful but candid and said she was conflicted. “I hope I answer this in a very sensitive way because I think we all know transgenders,” she said. “I think we all know people who may not be like we are.”
Mulkey favors a separate category of competition for transgender athletes. She referenced respected college basketball analyst Debbie Antonelli as the inspiration for her concept.
“She has a special needs child, and we found the Special Olympics for them, didn’t we?” Mulkey asked. “We found a place for them to compete. And I think that with time, maybe you will see a league or something for transgender athletes.
“I’m sensitive to those on one side, and yet I’m also sensitive to those on the other side.”
Mulkey said that when she was the coach at Baylor, she asked the athletic director what the policy might be about recruiting a transgender athlete.
“I had that conversation with the athletic director, and I’ll leave it at that,” she said. “So, I was kind of ahead of the curve. I had a conversation. ‘What if?’ I never got an answer. But I was very much aware.
“I also want you to know that I have conversations with transgender people who don’t believe that they should be competing against biological females, and I find that real interesting. So, you ask questions. You’re human. You want to hear sides of stories and come up with what you think.”
Brooks, the only African American male head coach of a Power 5 conference women’s basketball team, filters the transgender issue through the prism of the Black experience in the United States. A large part of that experience has been exclusion.
“You have to have an open mind about everything,” he said. “Obviously as a Black man, all the things we’ve gone through to get where we are, how could I stunt anybody’s opportunity? You can’t be closed-minded. People have been closed-minded about us for a long time, so it would almost be hypocritical if you want to shut the door because of what they are, not who they are. If they fit what you want and they can come in and be part of it, that’s fine.”
Brooks, whose team was defeated by LSU on Friday, added, “Obviously, society is still trying to navigate everything, we’re part of society, so we’ll still navigate.”
Staley, whose undefeated Gamecocks were upset by Iowa, prefaced her remarks by saying she didn’t want to offend any sensibilities.
“I do see both sides,” she said. “We work in the business of helping young people find who they are. We may not agree on what decision they make, but for me, I want people to live their truth, whatever that is. I’m all for people finding who they are as quickly as possible, and I’ll leave the rest to God.”
LSU guard Alexis Morris said she was not in favor of transgender athletes competing.
“I support whatever makes people happy. If you don’t feel comfortable in the body you were born in, I 100% uphold you in your choice,” she said. “I do not think transgender athletes should be able to participate in sports, I think they need their own league. I don’t think it’s fair for men to be able to transition to women and compete in women’s sports because at the end of the day, you’re still a male, you still have a male’s physique, you still have a man’s makeup.”
She added, “A woman can never compete with a man. It’s just not how God designed it.”
“What we’re seeing right now in sports is this emphasis on pitting cisgender women against trans women and Title IX being framed as being under attack by trans people.” — Nicole Morse
The notion of male physical superiority is a familiar trope among opponents of transgender participation in women sports. They mistakenly correlate testosterone with athletic talent.
Nicole Morse, the director of the Center for Women, Gender and Sexuality Studies at Florida Atlantic University, said that Morris’s perspective is a commonly held but inaccurate.
“As a scholar of gender, and not on behalf of my university, this is incorrect,” Morse said during a recent interview. “Medical transition can profoundly alter trans women’s physiology, and moreover, cis women can and do beat trans women in competition.
“The assumption that men are always stronger than women is a social myth that ignores the diversity among men and women, as well as the biological reality that binary sex is itself a social myth that is enforced in part through violence against intersex people, including intersex athletes.”
Critics argue that one’s biological assignment at birth should forever determine your identity: If you are assigned male designation at birth, you are male; if assigned female identity at birth, you are female. Critics also argue against the idea that an individual can reject those designations and choose a gender designation that feels natural.
The attitude was summed up by South Carolina Gov. Henry McMaster, who recently signed into law a bill that would ban transgender students from playing girls’ or women’s sports in public schools and colleges. He said, “I think the girls ought to play girls and the boys ought to play boys. That’s the way we’ve always done it.” Asked if he meant biological boys, McMaster said “are there any other kind?”
This is the attitude that advocates are up against.
Said Morse: “As a Reconstructionist Jew, the God I believe in creates trans people and queer people and celebrates all the ways we can be human. But in a secular democracy, it doesn’t matter what God one believes in. We need to make policy decisions based on truth and fact, and the facts just don’t support the claim that trans women have an unfair advantage over cis women in sports.”
Sports such as swimming, track and field and soccer have had to confront the transgender dynamic, especially at the youth level. Women’s basketball, especially at the Division I level, has rarely had to confront the transgender issue. In 2010, Kye Allums, a member of the George Washington women’s basketball team, became the first publicly transgendered student-athlete in NCAA history. He began to identify as a man.
Last month, the Biden administration proposed a new set of Title IX rules that expanded protections for transgender students in college. To the consternation of LGBTQIA advocates, the administration did not provide clarity about how it planned to address transgender students’ participation in athletics.
The new proposal released in March on Title IX of the Education Amendments of 1972 — the law that prohibits discrimination based on sex at all federally funded schools and colleges — would bar discrimination and harassment against students based on gender identity and sexual orientation. The proposal will trigger a barrage of legal challenges from conservative state legislatures.
The Biden administration’s ambiguity over federal guidelines has opened the door for state legislatures to pass their own restrictive measures. The irony of the Title IX celebration is that opponents of transgender access are using Title IX against transgender athletes in the name of defending the body autonomy of cisgender women.
“What we’re seeing right now in sports is this emphasis on pitting cisgender women against trans women and Title IX being framed as being under attack by trans people,” Morse said.
The U.S. House Education and Workforce Committee passed a bill along party lines in March that would block transgender girls from competing in school sports consistent with their gender identity. The bill would amend Title IX to require student athletes to compete in sports in accordance with “a person’s reproductive biology and genetics at birth.”
The bill would also make it a Title IX violation for facilities that receive federal funding to allow transgender female athletes to compete in sports designated for women.
The success of transgender swimmer Lia Thomas at the University of Pennsylvania sparked much of the debate around trans athletes having an advantage over cisgender athletes competing in the same sport.
The NCAA has established new guidelines which will be fully implemented by August. Under these guidelines, transgender athletes at NCAA member colleges will have to report their testosterone levels regularly and provide additional documentation that they meet specific standards depending on the sport they compete in.
The hot button issue of allowing transgender athletes to compete is complex, emotional and still evolving, but it’s ultimately about fairness, access and inclusion. This is something to consider as we celebrate 50 years of Title IX.
The law was designed to protect rights, open doors and create opportunity. All of those who rail against transgender athletes should remember: History does not look kindly on exclusion.