MONTGOMERY — As several states have and are continuing to target transgender participation in sports, the U.S. Department of Education is attempting to provide some protections through an update to Title IX.

Title IX has been in place for more than 50 years and bans sex discrimination in athletics in any educational institution or program that receives federal funding. That includes public K-12 schools, and colleges and universities.

Leading with Idaho in 2020, Alabama and Georgia are among 20 states — the majority of them in the South — that have laws banning biological boys who identify as female (transgender girls) from competing on girls teams.

Most recently, the Alabama House on April 18 voted 83-5 in favor of House Bill 261 which would extend its 2021 ban on K-12 transgender athletes to include college teams. The bill now awaits a Senate vote.

Supporters of such measures argue that allowing a biological male to participate on a female sports time is an unfair advantage, asserting that males are biologically stronger than females.

“Allowing biological men to compete in women’s sports is completely unfair and offensive to the accomplishments of female athletes,” Congressman Mike Rogers, R- Ala., said.

Last year, Georgia legislators snuck the widely debated measure into a separate bill (HB 1084) during the 11th hour of its legislative session, allowing the decision to be made by the Georgia High School Association, which ultimately updated its by-laws weeks later to prohibit high school students from participating in sports that do not match their sex assigned birth.

Previous to that vote, a GHSA bylaw allowed the gender to be decided at the school level.

Transgender student removed from lacrosse team

Jen Slipakoff noticed that one of her two children, both born male, was “different” as early as age 4.

Despite efforts to push the younger sibling to gravitate toward traditional boy toys, the younger sibling naturally veered toward dolls and traditional girl toys in stores, Slipakoff said.

The now 15-year-old child identifies as a female, using the pronouns she/her.

“At first she would sort of use things around the house to sort of make dresses and skirts. She had like the superhero cape and she would use that to make a skirt or use that to make hair,” Slipakoff, a metro Atlanta resident, said. “She would wear like my dresses around the house and so it was just very obvious to us what was happening and so it was very organic.”

Up until the passage of HB 1084 last year, Slipakoff’s transgender daughter had played on the girls lacrosse team in school for three years.

“That has been a really devastating blow to her and to our family. She had been playing with her teammates for years and then, you know, she just wasn’t allowed on the team. It was like almost that she was like dismissed,” Slipakoff said.

Her daughter has been allowed to stay on the roster as the team manager since the new Georgia law was enacted last year.

“It’s like a consolation prize and that just does not feel like the way it should be. It just really takes away what the spirit of teamwork really means,” Slipakoff said.

She described her daughter as a tall, “rail-thin beautiful redhead with delicate features.”

“She’s one of the smallest people on her girls team. So this idea that they would think that she belongs on the boys team is just crazy to me,” Slipakoff said. “I think that’s the problem with making sort of blanket rules like that. Even the folks at GHSA … I think if they met my daughter, they would say, ‘Yeah, she absolutely does not belong on the boys team.’”

Slipakoff suggested if the argument is that males are stronger than females, the argument could spill over to cisgender males who may argue that other male competitors are dominantly larger and stronger and should be restricted.

Doctor: Banned therapies could minimize arguments against transgender in sports

As many states have restricted transgender participation in sports, the same states are also prohibiting therapies and surgeries on minors who want to conform transgender identities.

Dr. Isabel “Izzy” Lowell, a University of Connecticut Shool of Medicine and Emory University graduate, in 2017 founded QueerMed (QMed), a medical clinic that provides gender-affirming care for transgender and nonbinary kids, teens and adults.

Based in Decatur, the clinic has locations or pop-up clinics in more than 20 states — primarily in the eastern United States — and services nearly 1,000 minors across the country, according to Lowell.

More than a dozen states — including Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Iowa, Kentucky, Mississippi, South Dakota, Tennessee and Utah – have passed laws that restrict gender-affirming care for minors.

In Alabama, the law prohibits hormone therapy, puberty blockers and surgical interventions on minors, while some laws — like in Georgia — restricts all but puberty blockers, which are reversible.

Puberty blockers can be started as early as age 9 or 10, and prevent the body from developing its own estrogen or testosterone that produce certain sex characteristics.

Lowell explained that a child born male and uses puberty blockers before having any male puberty would “be very similar, if not indistinguishable from any other female athlete” when they begin taking estrogen hormone therapy.

However, if a biological male child has already started puberty then gets started on estrogen hormone therapy, results could vary.

“Depending on the exposure they’ve had to testosterone, they may have grown slightly taller than they would have been otherwise or have slightly broader shoulders, for example,” Lowell explained. “And the muscle mass itself would decrease over time after they’ve been on estrogen.

“Again, another argument for allowing treatment of minors of young people to prevent going through the wrong puberty —that applies to sports as well — it’d be a much more fair situation to have all those female athletes not have gone through male puberty and gone straight from puberty blockers to hormone therapy,” Lowell continued. “They’d be on the same playing field, so to speak, as any other female athletes.”

Testosterone hormone therapy for biological females increases muscle mass and adrenaline-like hormones, and has some irreversible features such as voice change, hair growth and infertility, according to Lowell; biological males using estrogen hormone therapy would experience redistribution of body fat and less body mass, along with some potentially irreversibly effects such as breast development and infertility.

Lowell, who identifies as gay, lesbian and gender nonconforming, said restricting access to the interventions for minors could result in higher suicide rates among an already high-risk class of people. Full consent of the legal guardian for any of the procedures, and usually seeing a mental health professional are common practices before any procedure is performed.

Lowell said it’s rare that surgical interventions, like genital reconstruction surgeries, are performed on minors.

“That does happen for minors, in rare cases in like California, Massachusetts,” Lowell said. “There are a couple centers in the country that are doing those surgeries for people under the age of 18. Not very many and certainly not in the South. and I’ve never heard of that happening in the state of Georgia,” Lowell said.

The Georgia law takes effect July 1 but grandfathers in children who have already received gender-affirming care prior to that date.

Alabama Rep. Susan DuBose, R-D45, the sponsor of Alabama’s HB 261 said April 18 that “no amount of hormone therapy” can undo the physical advantages that males are born with.

“Forcing women to compete against biological men would reverse decades of progress women have made for equal opportunity in athletics,” she said.

What is in the proposed Title IX update?

The U.S. Department of Education states that participation in school athletics is an important component of education and “provides valuable physical, social, academic and mental health benefits to students.”

Essentially, the proposed update would establish that policies violate Title IX when they categorically ban transgender students from participating on sports teams consistent with their gender identity. Noncompliance of the regulations would result in removal of federal funding from the education entity.

Highlights of the proposal:

In some instances, such as in competitive high school and college athletic environments, some schools would be able to adopt policies that limit transgender students’ participation.

The proposed rule would provide schools with a framework for developing eligibility criteria that protects students from being denied equal athletic opportunity.

The Department would allow schools flexibility to develop team eligibility criteria, such as ensuring fairness in competition or preventing sports-related injury. The criteria would have to account for the sport, level of competition and grade or education level.

Under the proposed regulation, elementary school students would generally be able to participate on school sports teams consistent with their gender identity.

Schools that seek to restrict students from participating consistent with their gender identity must take account of the nature of the sports to which the restriction would apply, as sports vary in the skills and talent they require. The proposal notes that schools also offer teams at lower levels of competition, such as intramural or junior varsity teams, that allow all or most interested students to participate.

The Department’s proposed Title IX regulation will be open for public comment for 30 days from the date of publication in the Federal Register at www.federalregister.gov.

U.S. House Republicans voted April 20 to advance the Protection of Women and Girls in Sports Act of 2023, which would make it a violation of Title IX for federally funded education programs or activities to operate, sponsor, or facilitate athletic programs or activities that allow individuals of the male sex to participate in programs or activities that are designated for women or girls.

The proposal — which is less likely to pass in the Democrat-led Senate — would define sex as individual’s reproductive biology and genetics at birth.