Bostock, Biden and Bathroom Update

State Legislation vs. Transgender Athletics 

As mentioned in my previous article entitle Bostock, Biden and Bathrooms, President Biden signed an executive order on his first day of office requiring all departments to revisit policies in light of the Supreme Court’s ruling in the Bostock Case.

Within two months Republican led legislatures around the country took quick action to pass laws that prohibited a student that identified with a different gender than that of birth from competing in athletic events. In Tennessee, HB0003 and SB0228 were drafted to require local school districts to confirm the sex of a student in grades 5-12 at birth. Governor Bill Lee signed the bill into law on March 26, 2021 and it became effective on April 6, 2021.

Advocates for the law claim the laws follow the intent of Title IX by ensuring fair and equitable competition in girls athletics. Opponents argue that such actions are a legislative act of discrimination in violation of Title IX that violate both the Supreme Court and the aforementioned executive order by President Biden. Additionally, opponents point to the fact that not one supporter could point to a single instance in which a student was affected by the participation of a transgender student in middle or high school athletics.

West Virginia passed similar legislature this spring but things are heating up in the Mountain State. Becky Pepper-Jackson, an 11 year old who identifies as a girl, will be denied participation on her middle school’s cross country team this fall if the law there goes into effect.[1] As such, Becky and her parents are taking action and have filed suit to ensure that Becky and those students in her situation will have the right to participate in extra-curricular activities in the gender to which they identify.

The ACLU, which is supporting Becky and her family in this cause of action, is seeking an injunction prohibiting the law from going into effect. While this is first action for a middle school student, a judge in Idaho issued such an injunction last year allowing transgender college athletes to participate on the team that matches their identified gender.[2] We will have to wait and see if the courts in West Virginia uphold the law or whether they will issue the injunction thereby allowing transgender student athletes to participate according to their identified gender. 

[1] B.P.J. v. West Virginia State Board of Education

[2] Hecox v. Little, 479 F. Supp. 3d 930 (D. Idaho 2020)