Abstract

Anti-trans advocates have created a smokescreen—painting transgender people as a threat to cisgender women and girls—in order to push their latest legislation targeting trans students’ participation in school sports. This Article rebuts the argument that there are competing sex discrimination interests when it comes to school athletics and challenges the idea that rights and opportunities for cisgender women and girls are threatened when transgender people are treated equally. Anti-trans sports bans are not based in science or reality. Rather, science serves as a post hoc justification for race and sex stereotypes about women and sports. A look into the origins of “sex testing” in sports makes it abundantly clear that sex testing and trans exclusion is part and parcel of a long history of gender policing of women, girls, and nonbinary people, particularly people of color. Laws or policies that force people to prove their gender through invasive testing are antithetical to gender equality goals and only further entrench race and sex stereotypes. I argue that when such bans target students, they contravene federal law and the Constitution. The Supreme Court’s recent decision in Bostock v. Clayton County made clear that anti-trans discrimination is sex discrimination. I argue that there is no way for opponents to distinguish the breadth of Bostock’s holding from applying to school sports under Title IX—nor can these laws survive constitutional analysis. An examination of the asserted state interests in recent sports bans reveals that they are rooted in anti-trans animus and sex stereotypes, not a genuine interest in women’s sports and gender equity.