Betsy DeVos’s Department of Education has just taken a step that could eventually put opportunities for trans athletes to compete according to their gender identity in jeopardy.
The U.S. Department of Education’s Office for Civil Rights agreed yesterday to investigate a Title IX complaint filed on behalf of three Connecticut cisgender female track and field athletes that the state’s policy allowing trans athletes to compete with them constitutes “illegal discrimination.”
On Thursday, the Washington Blade reported the DOE rushed to begin its investigation without having a solid understanding of the legal framework to accept jurisdiction. The Blade obtained emails which it said detail a behind-the-scenes exchange among officials in the Office for Civil Rights. The report has not been independently verified by Outsports.
The complaint alleges that the three track athletes — identified as “Selina Soule and two other female athletes” — have been “consistently deprived...of honors and opportunities to compete at elite levels.” These honors and opportunities include “multiple medals, opportunities to compete at a higher level, and the public recognition critical to college recruiting and scholarship opportunities.”
In other words, the complaint would have you believe that Soule and the two others would totally dominate the track if it weren’t for scary, scary trans athletes transitioning just to take their scholarships.
Soule, a high school student from Glastonbury, Conn., and the two other teens, filed their complaint through a conservative Christian advocacy group called the Alliance Defending Freedom, an organization dedicated to well-known code words like “religious freedom, sanctity of life, and marriage and family” that has been designated a hate group by the Southern Poverty Law Center.
The ADF’s press release detailing the news is a tough read filled with deliberately misgendered language, describing Connecticut’s trans-inclusive policy as allowing “biological males who claim a female identity to compete in girls’ athletic events.” In the same release, ADF Legal Counsel Christiana Holcomb doubled down on the bigotry:
“Female athletes deserve to be on a level playing field. Forcing them to compete against boys makes them spectators in their own sports, which is grossly unfair and destroys their athletic opportunities... Girls competing against boys know the outcome before the race even starts.”
As anyone who does even a modicum of research on the issue quickly realizes, that is simply not true. Trans writer Parker Molloy has repeatedly written about the tendency for groups like the ADF to cherry pick the performance of a few elite trans athletes to make it seem as if they consistently overwhelm cis women on the playing field. As Molloy noted when referencing a twelfth place finish by trans athlete CeCé Telfer, “None of the [far right] sites reported on the event when it didn’t play into the narrative about unfair advantage.”
Andraya Yearwood and Terry Miller, the two trans girls cited by the ADF in their complaint, did not respond to requests for comment on the investigation, and Yearwood’s father declined to comment when contacted. But when the complaint was first filed in June, Yearwood issued this statement via the American Civil Liberties Union:
“There is no shortage of discrimination that I face as a young Black woman who is transgender. I have to wake up every day in a world where people who look like me face so many scary and unfair things. I am lucky to live in a state that protects my rights and to have a family that supports me. This is what keeps me going. Every day I train hard - I work hard to succeed on the track, to support my teammates, and to make my community proud. It is so painful that people not only want to tear down my successes but take down the laws and policies that protect people like me. I will never stop being me! I will never stop running!”
Yearwood and other transgender athletes appear in “Changing the Game,” a critically-acclaimed documentary that is making the rounds of film festivals with its story of how these athletes battle discrimination and outright hatred, yet persist in their goals of competing.
Speaking for the ACLU, attorney and transgender rights activist Chase Strangio — who himself is a trans man — told Outsports in a statement that despite the announcement of an investigation, “Connecticut’s policy of allowing all girls, including transgender girls, to run on the girls team remains unchanged.”
“Efforts to undermine Title IX by claiming it doesn’t apply to a subset of girls will ultimately hurt all students. Girls who are transgender are girls. The Trump administration — from the Office of Civil Rights to the Supreme Court — is systematically trying to roll back rights for transgender people in all aspects of life. We will fight to defend transgender people across the country, including in sports.”
What’s also worth repeating is what trans soccer and beach handball player Athena Del Rosario told Outsports in our original report on the ADF’s complaint:
“It’s laughable to think that a couple of trans girls cost these three plaintiffs anything. Prospective colleges are going to be looking at their finish times and not what place they came in. They should have trained in such a way that would have been conducive to achieving their goals of making better times that would attract college recruiters. There are literally hundreds of colleges. They only thing that may have cost them opportunities is their poor attitudes towards other athletes and their focus on others instead of themselves.”
And yet, the consequences of those very attitudes that led them to file the complaint could be drastic for all trans athletes throughout the country. While the government has only agreed to investigate the complaint at this point, it’s not too much of a leap to observe the Trump administration’s record on implementing a transgender military ban and rescinding protections for trans students to use the bathroom that matches their gender identity and conclude that trans athletes are in trouble.
Just last month, The New York Times reported how the administration, especially the Department of Education under Secretary DeVos, has reshaped policy to exclude civil rights protections for transgender students. Students who claimed their sexual orientation or gender identity resulted in discrimination, who filed complaints similar to the ADF’s, were significantly less likely to get any relief from the Education Department’s Office for Civil Rights under the Trump administration than they were under the Obama administration, according to that report.
If this pattern continues, the moral of the story will be: if at first you don’t succeed, try to complain until everyone who beats you gets banned.