Nightly Nuance - January 26, 2021

Hello my friends. Today, we're going to address an aspect of a recent Executive Order that is taking off in conservative media: protections for transgender athletes in publicly-funded programs.

**This episode of the Nightly Nuance would normally be shared only with supporters at the $15 tier. I am sharing it with $5 tier supporters as well because I messed up yesterday and didn't send you Monday's Nightly Nuance. Please accept this additional episode along with my sincere apology. You should now see Monday's episode, as well.**

I try to begin by giving you the most straight-forward interpretation of the Order and its meaning that I can, and I end by sharing my opinion on this topic, which I recognize is personal for a huge variety of reasons. I have attempted to speak about the standards governing transgender athletes at the K-12, collegiate, and Olympic levels frankly and with care. Please know that my heart is in showing great respect to each of you, and I welcome your feedback on how I can improve my language and thinking.

President Biden's order, in relevant part, states "Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports."  

That's it! That's all it tells us. So we have to look at Supreme Court precedent, other cases, and current protocol in schools and athletic associations to find additional meaning.

The Order relies on the Supreme Court's Bostock v. Clayton decision, which we discussed on the Nightly Nuance in depth (discussion of majority opinion; discussion of dissents). Bostock held that discrimination based on gender identity qualifies as sex-based discrimination under federal civil rights laws. Accordingly, the Biden administration says, the Executive branch has a moral and legal duty to follow and enforce that interpretation.

In one sense, this Order seems unremarkable -- a simple pronouncement that the administration will follow the law. On the other, the Human Rights Commission calls this Order the most substantive LGBTQ+ executive order in US history. It seems to me that both things are true.

That still doesn't tell us whether and/or under what requirements transgender athletes may compete on the team of their gender identity in your high school's soccer program. Truthfully, we just don't know. The NCAA and IOC permit transgender athletes to compete with certain requirements in place, especially for transgender women. The United Nations has called these hormone requirements humiliating and harmful. The research on whether, when, and to what extent a transgender athlete might have a physical advantage over a cisgender competitor is inconclusive (see the previous link for some discussion of this issue). 

At the K-12 level, states have widely diverging approaches, catalogued thoroughly by transathlete.com. We do not have binding judicial review of these requirements post-Clayton. Two cases are currently pending that might tell us more.

For now, #BidenErasedWomen is, in the most generous interpretation, grossly overstated.