The battle over Title IX and who gets to be a woman in sports — inside the raging national debate | #students | #parents

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 4×200 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.

On Feb. 12, on behalf of three prep runners and their families, the Alliance Defending Freedom announced a federal lawsuit challenging a Connecticut policy that ensures transgender inclusion in sports, arguing that it stands in violation of Title IX. Kassi Jackson/Hartford Courant/Tribune News Service via Getty Images

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.

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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.

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.

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