Trans-ition game

On his first day in office, President Joe Biden signed an executive order that could radically transform women’s high school and college sports by requiring them to allow biological men to participate. Biden intended the order to serve as a stopgap until Congress passes the Equality Act, which would codify sexual orientation and gender identity (SOGI) nondiscrimination in federal law. Biden has pledged to sign the Equality Act into law within his first 100 days as president.

The push for transgender participation in sports has sparked outrage from some feminists who say it tramples on female athletes’ rights. They waged a Twitter campaign featuring the hashtag #BidenErasedWomen. Feminist author Jane Clare Jones slammed Biden for “unilaterally imposing trans ideology on a nation with no thought for women’s rights.” Abigail Shrier, author of Irreversible Damage: The Transgender Craze Seducing Our Daughters, declared that the order “eviscerates women’s sports” and “placed a new glass ceiling over girls.”

Under President Donald Trump, the U.S. Department of Education determined that Title IX, the federal law prohibiting discrimination against women in schools, did not apply to sexual orientation or gender identity. The policy was designed to protect women from having to settle as runners-up in their own competitions and from the safety risks from playing with male athletes, whose physical advantages typically persist even after they have undergone cross-sex therapies.

Without such a policy, women might have to compete against men for athletic scholarships. They also could have to undress in front of male teammates who share their locker rooms, raising concerns about privacy and sexual harassment.

The Trump administration actively supported preserving women’s sports: Last June, the Department of Justice issued a statement supporting Idaho’s Fairness in Women’s Sports Act, which is now facing a federal court challenge.

The U.S. Constitution’s equal protection clause “permits Idaho to ensure equal athletic opportunities for limiting some athletic competitions and teams to biological females,” the Justice Department said. “As part of ensuring equal opportunities, Idaho may prevent biological males from displacing females.”

In 2016, the Obama-led Department of Education ordered the nation’s public schools to let transgender students use restrooms, locker rooms, and shower facilities, and play on sports teams that were consistent with the students’ self-proclaimed gender identities.

The Trump administration rescinded that order, but Biden essentially put it back in place, threatening to yank federal funding from educational institutions that do not comply.

The Supreme Court’s decision last summer in Bostock v. Clayton County has given a tailwind to the transgender movement. The ruling held that the protections of Title VII— the federal law prohibiting discrimination in the workplace “on the basis of sex”—extended to gay and transgender persons. In his dissent to Bostock, Justice Samuel Alito foresaw the ruling’s potential application in Title IX cases involving women’s athletics. Not two months later, a federal district court relied on Bostock in temporarily blocking Idaho’s Fairness in Women’s Sports Act from going into effect, and another federal court in Connecticut will likely consider Bostock when ruling on whether that state must keep high school sports segregated by sex.

The Idaho and Connecticut courts may factor Biden’s order into their decisions, as well. They do not have to: Judges need not show deference to federal agencies’ interpretations of law that conflict with courts’ prior, consistently held interpretations. Courts have consistently held that Congress enacted Title IX to remedy discrimination against biological women.