On transgender athletes, North Carolina GOP and Biden aren’t that different

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The North Carolina House last week passed a bill prohibiting transgender girls and women from participating in girls and women’s sports teams and competitions in middle school, high school and college.

The state Senate passed a similar bill.

The North Carolina Democratic Party condemned the votes: “To every trans or gender non-conforming youth: we see you, you belong, you belong on the sports field, in the classroom and we love you.”

The party added: “To Republicans attacking transgender rights, specifically targeting children, voters will hold you accountable at the ballot box.”

But the GOP legislation has similarities to the Biden administration’s guidance on transgender athletes released three weeks ago.

Many liberal activists and politicians like N.Y. Rep. Alexandra Ocasio-Cortez protested the president’s proposals, calling them “indefensible and embarrassing.”

This Inside Politics will explore how the North Carolina legislation compares with the federal guidance on transgender athletes.

Biden’s new Title IX guidelines were at first cast in the media as a win for transgender athletes, like this NPR story, which stated: “The Biden administration moves to make broad, transgender sports bans illegal.”

That is correct, to a point.

But a closer reading shows that Biden opens the door to what North Carolina Republicans are doing. They would just have to go about it in a roundabout way.

Here is the language in the proposed federal guidelines:

If a recipient adopts or applies sex-related criteria that would limit or deny a student’s eligibility to participate on a male or female team consistent with their gender identity, such criteria must, for each sport, level of competition, and grade or education level: (i) be substantially related to the achievement of an important educational objective, and (ii) minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied. 

The key phrase is that there is an admission that a school district or state (the recipient of Title IX funds) can deny a student participating in a sport based on their gender identity.

“The ... .proposed regulation acknowledges that it can make sense — because of the educational mission and the stage of sex development that we are in, like varsity play in high school — that it can make sense to restrict or limit participation,” said Duke Law professor Doriane Coleman.

The federal government said any restriction must be “substantially related” to an educational objective.

A school district or state could say that the objectives of high school varsity sports are to promote physical fitness; to foster teamwork and discipline; and to determine the best runner/swimmer/tennis player or team.

It could then say that allowing transgender girls to compete on girls teams doesn’t align with that objective.

That might be a harder argument to make if attempting to prohibit transgender girls from competing against other girls in elementary school, where there is little or no formal competition and there is no realistic expectation of determining who is the best. In addition, few children have gone through puberty in elementary school.

The North Carolina House bill also prohibits transgender girls from also playing on girls intramural teams. Would that run afoul of the Biden regulations? Quite possibly.

The other criterion in the Biden guidance is to “minimize harm.”

This is difficult to quantify.

Party line vote in Congress for transgender athlete prohibition

The U.S. House this week voted along party lines to exclude transgender girls and women from girls and women sports. Among Republicans, 219 voted yes and 203 Democrats voted no.

Two Republicans and eight Democrats didn’t vote.

Two of the eight Democrats who didn’t vote are from North Carolina — Don Davis and Deborah Ross.

In the North Carolina House vote on transgender athletes, three Democrats voted with Republicans — Garland Pierce, Shelly Willingham and Michael Wray. Former Democrat Tricia Cotham also voted with the GOP.