<
>

The battle over Title IX and who gets to be a woman in sports: inside the raging national debate

In May 2016, President Obama issued guidance on transgender inclusion in schools. Nine months later, the Trump administration rescinded the guidance. Now the national debate centers on five high school girls in suburban Connecticut. Spencer Platt/Getty Images

IT'S A BRISK, sunny afternoon in New Haven, Connecticut, and Andraya Yearwood is standing at the starting line, knees bent, waiting for her teammate to pass the baton. Her toes dig into the soft rubber of the track at Floyd Little Athletic Center.

Even though the 4x200 meters is the meet's first event, the crowd has begun to fill in the seats around the oval of the track and along the upper deck of the sprawling field house. It's the 2020 Class S indoor state championships in mid-February, and the field house will be full of fans cheering on the state's small schools. The fluorescents burn brightly overhead.

Yearwood waits as one, two, three, four teams pass the baton in front of her. She's run in different positions on relays for her team over the years, but for this one, as a senior, she's the anchor. Cromwell -- her 562-student school 28 miles north of here -- with its red and black uniforms, will start the final lap in fifth place, considerably behind.

Now the baton arrives, and Yearwood launches off the starting line. Baton in hand, she blows by Morgan High School. Three more seconds and she gets the better of the anchor for Canton. As she passes the 100-meter mark -- halfway through her lap -- she catches second-place St. Bernard.

Yearwood looks ahead and sees nothing but open track, except for a flash of orange turning the corner of the home stretch, some 25 meters ahead. Bloomfield senior Terry Miller.

For all the excitement in the first 100 meters, Yearwood won't catch Miller. By the time Yearwood crosses the finish line, Miller has already been there for five seconds. Miller and Bloomfield High -- the favorites to win the meet -- take first, while Yearwood and Cromwell High take second. As the two catch their breath, they high-five and smile. People are likely to talk, but they were going to anyway.

Finishing first and second is, after all, what started this trouble for them in the first place. And what else could happen now? There was already a lawsuit with their names on it.

TWO DAYS EARLIER, Christiana Holcomb stood on the steps of the Connecticut state Capitol. The attorney for Alliance Defending Freedom (ADF) was flanked by three high school girls, Selina Soule, Alanna Smith and Chelsea Mitchell, and their mothers. The ADF -- a legal organization that has argued a number of anti-LGBTQ positions in front of the Supreme Court -- was there to announce the filing of a federal lawsuit challenging the Connecticut Interscholastic Athletic Conference (CIAC) policy, enacted in 2013, governing transgender inclusion in sport. It was the policy that had allowed Andraya Yearwood and Terry Miller to compete in the girls' category during their high school careers.

Connecticut is one of 18 states, along with the District of Columbia, to allow high school transgender athletes to compete in accordance with their gender identity rather than their sex assigned at birth, and without requiring medical or legal intervention in the form of hormone replacement therapy (HRT), surgery and/or birth certificate amendments.

The ADF was arguing on behalf of its clients that such a policy violates Title IX, the 1972 law that bars discrimination "on the basis of sex" in educational programs receiving federal funds, including athletics. To fulfill the aim of Title IX, a law designed to promote inclusion in sports, they argued, the exclusion of another group was necessary. A year ago, in June 2019, the ADF filed a complaint to the Department of Education making the same argument.

"We're looking for a return to a level playing field," Holcomb says. "It's our position that what's happening with the [CIAC's] policy is that by allowing males into the female category ... they're denying female athletes opportunities and failing to accommodate physical differences between the sexes."

Throughout its 29-page complaint to the Department of Education, the ADF referred to Miller and Yearwood as males.

The Trump administration has issued statements that agree with the ADF's position. On May 15, Betsy DeVos' Department of Education sent a 45-page letter to the CIAC concurring with the ADF that the CIAC policy is in violation of Title IX. Attorney General William Barr's Department of Justice filed a statement of interest -- a tool used by the DOJ to share the department's thinking on an issue -- in the federal lawsuit on March 24 in support of the ADF's position. Neither action is a binding legal document but reflects the current thought inside the federal government.

For its part, in June 2019, the Connecticut Commission on Human Rights and Opportunities, a state agency whose mission is to eliminate discrimination in Connecticut, published a statement that argued in favor of the current CIAC policy.

"The purpose of our organization is about giving kids an opportunity to develop social, emotional, cognitive, physical and mental health and well-being," says CIAC executive director Glenn Lungarini. "We believe our inclusive policy -- that does align with federal and state law -- gives the best opportunity for all kids to benefit from those aspects of participation in sports."

Buried in the legalese and statements and motions and countermotions is a battle at the intersection of gender and sports -- and a fundamental question that will forever change Title IX and women's sports.

What does it mean to be a woman?


IF THERE IS a genesis of the legal battle among Connecticut runners, it might have come at the 2019 outdoor State Open. It was there -- 14 days before the ADF filed its complaint and eight months before it filed its lawsuit against the CIAC -- that Smith, Miller, Mitchell and Yearwood all settled into their blocks for the 100-meter final. It would be the only time these four were ever on the track together. Smith, the daughter of Hall of Fame relief pitcher Lee Smith, was just a freshman. Mitchell, Miller and Yearwood were juniors.

The paths they had taken to those 100-meter starting blocks were far more circuitous than the race they were about to run.

Yearwood had begun running in middle school against the boys. When her parents required her to play a sport every season, she chose track. It was also during middle school that she began to have conversations with her parents about her gender identity. She told them she was trans during the summer before eighth grade. When she began high school, in the fall of 2016, she started running against other girls, winning the Class M championship in the 100 and 200 as a freshman.

Miller, who declined to comment for this story, began her high school career competing against the boys. But following the 2018 indoor track season, Miller, as a sophomore, began competing in the girls' category after beginning to transition after her freshman year. Two months later, she won the 100 and 200 at the 2018 Class M outdoor championships, the State Open and the New England championships.

Back in Willow Brook Park, the home of the CIAC track and field championships, Miller lined up next to Mitchell for her first State Open with Bloomfield.

Mitchell says she was nervous. Earlier that afternoon, Miller had run an 11.64 -- the top qualifying time -- in the preliminary heats. "I didn't think I could compete with that," Mitchell says.

It was not the first time Mitchell had raced against Miller and Yearwood. A year earlier, in the 2018 outdoor State Open, Miller and Yearwood had finished first and second, respectively, in the 100 -- a result the transgender runners duplicated eight months later in the 55-meter race at the 2019 indoor State Open. Mitchell had finished fourth and third in those respective races.

It was the combined impact of those races that first drew attention, and controversy, to the high school careers of Terry Miller and Andraya Yearwood.

For Smith, this would be her first time running against the two transgender girls. It was also "the first time I heard her say, 'I don't have a chance,'" says Cheryl Radachowsky, Smith's mom.

The runners lined up for the last 100-meter race of Connecticut's season. Miller, in her orange uniform, was in Lane 4. Mitchell and Yearwood, both in black, were in Lanes 3 and 2, Smith in Lane 6. They settled into their blocks, the sun beating down. The runners raised themselves into position. The official put his arm in the air, his finger about to pull the trigger to start the race. And then Miller jumped off the blocks early, the crowd erupting into knowing cheers and applause.

The official called the runners back -- and disqualified Miller for a false start.

Miller, the presumptive favorite after winning the last 100 by 0.57 of a second, covered her face in shock as she walked off the track. Mitchell, stunned, walked back to her starting position, her hands over her mouth. Yearwood peered over her shoulder, watching Miller as she disappeared into the distance.

With her primary competition now eliminated from the race, Mitchell saw an opening: "I was overwhelmed with a sense of calm and belief that I could win this."

Once the race began, Mitchell shot out of her blocks, ultimately crossing the finish line first, in a personal-best time of 11.67. It was her first state championship. Smith placed third, Yearwood fourth.

Still, the battle between the runners went on. At the New England outdoor championships four days later, Mitchell won the 100, Miller the 200 and Smith the 400.

And after coming in third in the 200 at both the State Open and the New England championships, Smith, the freshman, resolved to challenge the policy.

"It doesn't matter if you get 10th place or third place," Smith says. "It's about knowing what place you deserve. At state and regionals in the 200, I got third place when I should have gotten second place. It's about knowing your hard work paid off and you got that spot fair and square."

WITH A SINGLE letter, dated May 13, 2016, President Barack Obama and his administration altered the debate over rights for transgender youth in the United States. Using a mechanism known as a "Dear Colleague Letter," Obama's Justice and Education departments issued joint guidance on transgender inclusion in schools. The letter spelled out how the administration was interpreting Title IX and was unequivocal about the inclusion of transgender students in its protection.

"The Departments treat a student's gender identity as the student's sex for purposes of Title IX and its implementing regulations," the letter said. "This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity."

In other words, when identifying a student's sex, schools cannot treat a transgender girl or a transgender boy differently because their sex assigned at birth differs from their gender identity, and doing so would constitute sex discrimination, a Title IX violation. So if a transgender girl wanted to use the girls' bathroom, she should be allowed. If students were separated into boys' and girls' teams in gym class, she would be on the girls' team. If she wanted to run track against other girls, she should be allowed to do that too, no matter what her birth certificate says.

Following the issuing of the guidance, 23 states and governors sued the administration in opposition, arguing that the guidance redefined sex to include gender identity and was an overreach by the federal government. "[The federal government has] conspired to turn workplaces and educational settings into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over common-sense policies protecting children and basic privacy rights," one of the lawsuits said.

"We're looking for a return to a level playing field. ... By allowing males into the female category ... [the CIAC is] denying female athletes opportunities and failing to accommodate physical differences between the sexes." Christiana Holcomb, attorney for the Alliance Defending Freedom

A federal judge in Texas blocked the guidance from going into effect in August 2016. Following Donald Trump's election, the Education and Justice departments rescinded the guidance and settled the lawsuits.

The result has been a form of legal limbo. The question of whether transgender inclusion is necessitated by Title IX or is, in fact, a violation of it, remains unresolved.

Then, on June 15 of this year, there was a bombshell: The Supreme Court issued a 6-3 majority opinion, authored by Trump nominee Neil Gorsuch, in which the court held that Title VII of the 1964 Civil Rights Act protects LGBTQ people from employment discrimination, ruling that punishing someone for being in a same-sex relationship or for being transgender is sex discrimination.

In the opinion, Gorsuch wrote that "an employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

"The court's decision that Title VII's prohibition on discrimination because of sex prohibits discrimination against people for being LGBTQ will extend to other federal laws prohibiting sex discrimination, including Title IX," says Chase Strangio, deputy director for transgender justice at the American Civil Liberties Union. "Decades of lower court precedent has already made clear that the court's analysis in Title VII cases applies to Title IX cases."

That is to say, a person experiences discrimination "because of sex" if they are fired for being transgender. Establishing the legal link between gender identity and sex discrimination in employment opens the door for that concept to be applied elsewhere. Like on a track in Connecticut.

YEARWOOD SITS ON the floor of the Floyd Little Athletic Center with her legs crossed, her braids falling over her shoulders. It's an hour after her second-place finish in the 4x200 relay, but now, just off the first turn of the track, she's sitting, staring blankly, eyes toward her phone, a distraction from the reality that 10 minutes ago her individual track career ended in a disqualification in the 55-meter dash.

She didn't expect it to end like it did, unceremoniously in the prelims with a false start -- the first in her four-year career. She was supposed to run in the final, maybe set a new personal record. Instead, she's here, scrolling through Instagram.

She says later that she didn't hear the small crowd of students clapping in celebration as she walked off the track after the false start, that she didn't hear the whooping coming from somewhere in the stands. Didn't see the glares of parents and coaches as she walked off the track toward the hallway.

After being featured in a Hartford Courant article her freshman year to little national notice -- a story that had focused on her transgender status -- Yearwood thought the interest in her would dissipate. "If anything, it got worse," she says. "I've faced retaliation from people in my state for the past four years. It's just tiring to go through one punch after another. I feel like I have to play my sport and then fight for the right to stay there."

She's been discussed and debated on the legislative floors in Texas, South Dakota and Idaho, in front of the House Judiciary Committee and on cable news. And she is, of course, the subject of a Title IX complaint and a federal lawsuit.

The morning before what would become her penultimate meet, when she met with her athletic director, the message was simple: Just tune out the noise and run. Easier said than done.

"I would love to say that it didn't get in my head, but I think it did a little bit," Yearwood says. "I also might have put too much pressure on myself. It was just a sucky feeling."


More from Katie Barnes


THE DEBATE AROUND transgender people and participation in sports exudes complication, in every aspect: the science, the laws, the policy fights. Pulling back a new layer just begets more layers.

Just as Connecticut and 17 other states now allow transgender students to compete in affirmation of their gender identities, Texas, Kentucky and eight others decide based on birth certificate, while 16 others operate on a case-by-case basis, using some type of committee review process, and/or requiring transgender girls to complete one year of hormone replacement therapy -- a process that suppresses testosterone and introduces estrogen for transgender women and introduces testosterone for transgender men. Six states have no policy at all.

The NCAA allows transgender men to compete in the men's category and mandates it once hormone replacement therapy begins. For transgender women, like Yearwood and Miller, the NCAA requires a minimum of one full year of hormone replacement therapy before competition. The same is true of the International Olympic Committee.

The ADF, for its part, is not proposing a policy like the NCAA's or IOC's in its complaint. Instead, the organization requests that the court bar the CIAC "from permitting males -- individuals with an XY genotype -- from participating in events that are designated for girls, women or females."

In other words, to the ADF, chromosomes decide sex -- XX for female students and XY for male students.

But sex, according to experts in the field, is more complicated than genetic coding. What is often referred to as biological sex is, in fact, a combination of multiple characteristics: genitalia, hormones, chromosomes and reproductive organs, and secondary sex characteristics like hip width, facial hair and breast tissue. All these factors, with ranges of variations and combinations, work in concert with one another to determine a person's sex.

To bring a system to high school athletics that determined sex by chromosome would thereby likely eliminate the possibility of gender-affirmative participation for transgender people.

"That's a test that most trans people can never meet," the ACLU's Strangio says. "You can't change your chromosomes."

BACK IN THE Floyd Little Athletic Center in New Haven, Mitchell and Miller line up next to each other in the center lanes for their next race. It's nearing 6 p.m., almost an hour after Yearwood's surprise disqualification. But if there were ever such a thing as a track-and-field heavyweight fight, the 55-meter dash would be it, and Miller would be Ali.

Mitchell, from Canton High, has never beaten Miller. Mitchell won the 2019 outdoor state championship in the 100, but Miller had false-started in that one and was disqualified. With Yearwood out of contention in this race due to her own false start, the 2020 55 meters comes down to these two.

The gun sounds, and Mitchell and Miller barrel down the track, arms and legs in unison, stride for stride, before crossing at what looks to be the same time. Mitchell, convinced she crossed first, pulls up as quickly as she can. She trots back toward the finish line, looking up at the screen above the rolled-up bleachers to see the results.

The lights flash. First place, Chelsea Mitchell, 7.18. Second place, Terry Miller, 7.20.

For the first time all afternoon, the crowd explodes in cheers and whistles, as Miller silently walks off the track toward her coaches. Mitchell puts her hands on her cheeks in disbelief, beaming.


THE SCIENCE OF transgender athletes is nascent.

There are few available peer-reviewed studies examining questions related to hormones and athletic performance and the effects of hormone replacement therapy. As such, policymakers are confronted with limited data with which to make decisions on the rules governing transgender athlete participation, such as how much time a transgender woman needs to be on HRT in order to compete fairly.

"There never was a great deal of science behind the decision as to what time was necessary for a transgender athlete to compete," says Dr. Myron Genel, professor emeritus at Yale and a pediatric endocrinologist who has worked with the IOC. "Sometimes you have to go with the data you have."

"The purpose of our organization is about giving kids an opportunity to develop social, emotional, cognitive, physical and mental health and well-being. We believe our inclusive policy -- that does align with federal and state law -- gives the best opportunity for all kids to benefit from those aspects of participation in sports." Glenn Lungarini, CIAC's executive director

But more data is beginning to emerge. In September 2019, the Karolinska Institutet in Stockholm -- publisher of many influential studies on the physiology of trans and intersex athletes -- published a landmark study titled "Muscle Strength, Size, and Composition Following 12 Months of Gender-affirming Treatment in Transgender Individuals." It concluded that following one year of testosterone suppression and cross-hormone therapy, transgender women had not seen a significant decrease in muscle mass.

This study is highlighted in various bills across the country, including Idaho's HB500 and Arizona's HB2706, which seek to regulate transgender athlete participation, and is being used as proof that transgender girls should not be able to compete in girls' sports. It also raises questions about the efficacy of the current NCAA and IOC policies, which use a one-year hormone therapy requirement for transgender women. Both pieces of legislation have ties to the ADF.

"The anticipated reduction of muscle mass and strength was very moderate among transgender women," says Dr. Tommy Lundberg, a researcher who began work on the study in 2015. "The reduction in muscle size was only 5%. And, of course, this is relevant because the difference in muscle size between men and women is much larger. We're talking about 30% or so."

But the Karolinska Institutet study follows only the progress of adult transgender women and transgender men. It is difficult, if not impossible, to extrapolate those findings and apply them to high school athletes. Puberty consists of five stages; the final stage typically occurs around age 15. So transgender youth who come out young enough might not experience puberty associated with their sex assigned at birth. "There's a lot of trans girls that never go through endogenous puberty," Strangio says.

"Puberty is the period where the sex segregation in terms of physical capacities becomes distinct," Lundberg says. "Before puberty, there's not really any biological basis or biological need to separate boys and girls in sports."

It is not known when, or at which stage of puberty, Miller and Yearwood began hormone replacement therapy -- that is private medical information -- but in the ACLU's motion to intervene in the ADF's lawsuit against the CIAC, it was disclosed that both athletes had begun HRT years earlier.

LINDSAY HECOX'S FEET kick behind her as she jogs on the Boise River Greenbelt. The 25-mile path, which snakes along the Boise River, has become a place of refuge for Hecox as she explores her new home. She runs out here five days a week, enjoying the tranquility that comes from the trees and river.

Hecox, 19, grew up in Southern California, joined her first track team during her freshman year of high school and began cross country the following fall. Hecox came out as trans following high school and began her transition soon after, before heading to Idaho in the fall of 2019 to attend Boise State.

It was along this path, which runs along the edge of campus, that Hecox began to see groups of collegiate runners. As she did, she began to wonder if she might be able to join them her sophomore year. She'd kept her grades up, and she missed running competitively.

As she began to embrace the notion of joining the team, the Idaho state legislature began to consider legislation that would have the effect of barring Hecox from doing so. HB500, also known as the Fairness in Women's Sports Act, required that sports and teams designated as female at all levels of competition "shall not be open to members of the male sex." That included transgender girls.

It applied to high schools, junior colleges and NAIA and NCAA schools. It was first proposed on Feb. 13, 2020, the day after the federal lawsuit was filed in Connecticut and the day before Yearwood, Mitchell and Miller faced off on an indoor track in New Haven.

Bill sponsor Rep. Barbara Ehardt, a former women's basketball coach, said HB500 would create a level playing field. She worked with the ADF to draft the legislation. "I am not trying to exclude trans people from living a full, healthy life," she told the Idaho House, as reported in the Idaho State Journal. "This is about competing in the biological sex in which you were born."

The bill stipulated that if a female athlete's sex was disputed, the athlete was required to provide documentation that included a signed statement from a physician that affirmed sex as determined by internal and external reproductive anatomy, endogenously produced hormones (which are naturally occurring and not administered into the body) or a genetic analysis.

"This is not routine physical testing that's done to give you the rubber stamp to play sports," says Kathy Griesmyer, former policy director for ACLU Idaho.

As HB500 inched closer to becoming law, Hecox realized that she would likely be the plaintiff in any lawsuit. "I said to myself that this applies exactly to me," Hecox says. "How many other trans women athletes are in the state of Idaho?"

According to the ACLU's legislation tracker, 20 bills were filed, in 17 states, seeking to regulate transgender participation in athletics. Only one -- Idaho's HB500 -- became law. It was signed by Gov. Brad Little on March 30. No publicly out transgender athlete has ever competed in the state of Idaho. In the passage of a separate law on the same day, the state also banned the ability to change sex on a birth certificate.

On April 15, the ACLU and Legal Voice filed suit on behalf of Hecox challenging HB 500. Her case is pending. The Justice Department in June filed a statement of interest defending the Idaho law.

On June 10, a number of student-athletes, advocacy organizations and professional athletes led by Megan Rapinoe, Sue Bird and Billie Jean King signed a series of open letters calling on the NCAA to move the first and second round of the 2021 NCAA men's basketball tournament out of the state.

The next day, the NCAA responded: "As we have previously stated, Idaho's House Bill 500 and resulting law is harmful to transgender student-athletes and conflicts with the NCAA's core values of inclusivity, respect and the equitable treatment of all individuals. Further, Board of Governors policy requires host sites to demonstrate how they will provide an environment that is safe, healthy, and free of discrimination, plus safeguards the dignity of everyone involved in the event." But as of now, the first- and second-round games of the 2021 NCAA men's basketball tournament will be played in Boise.

Says Griesmyer: "The bill's sponsors used Connecticut as a way to strike fear into people's hearts and minds about what might happen here."


COVID-19 BROUGHT a premature end to the 2020 high school athletics calendar. With no 2020 outdoor season, the courtroom remains the sole arena for the battle over gender in sport.

Still, for the five women at the heart of this battle, life goes on. Smith, a rising junior at Danbury High, says she plans to continue competing in Connecticut. She's giving up cheerleading to focus on indoor track for her junior and senior seasons. She says she plans to run in college.

Soule, a sprinter from Glastonbury High, plans to compete on the women's track team at Division I College of Charleston and major in psychology.

Mitchell signed with Division I William & Mary to run on its women's track team.

Miller is still weighing her college options. She doesn't know if competitive track is in her future.

Yearwood is going to North Carolina Central University in the fall. She plans to study Spanish and minor in political science. Her running career, she says, is over.