Protection of Women and Girls in Sports Act of 2023

39–006

118

ONGRESS

EPORT

" !

HOUSE OF REPRESENTATIVES

1st Session 118–35

PROTECTION OF WOMEN AND GIRLS IN SPORTS ACT OF

2023

PRIL

10, 2023.—Committed to the Committee of the Whole House on the State of

the Union and ordered to be printed

Ms. F

OXX

, from the Committee on Education and the Workforce,

submitted the following

R E P O R T

together with

MINORITY VIEWS

[To accompany H.R. 734]

[Including cost estimate of the Congressional Budget Office]

The Committee on Education and the Workforce, to whom was

referred the bill (H.R. 734) to amend the Education Amendments

of 1972 to provide that for purposes of determining compliance with

title IX of such Act in athletics, sex shall be recognized based solely

on a person’s reproductive biology and genetics at birth, having

considered the same, reports favorably thereon with an amendment

and recommends that the bill as amended do pass.

The amendment is as follows:

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Protection of Women and Girls in Sports Act of

2023’’.

SEC. 2. AMENDMENT.

Section 901 of the Education Amendments of 1972 (20 U.S.C. 1681) is amended

by adding at the end the following:

‘‘(d)(1) It shall be a violation of subsection (a) for a recipient of Federal financial

assistance who operates, sponsors, or facilitates athletic programs or activities to

permit a person whose sex is male to participate in an athletic program or activity

that is designated for women or girls.

‘‘(2) For the purposes of this subsection, sex shall be recognized based solely on

a person’s reproductive biology and genetics at birth.

‘‘(3) Nothing in this subsection shall be construed to prohibit a recipient from per-

mitting males to train or practice with an athletic program or activity that is des-

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ignated for women or girls so long as no female is deprived of a roster spot on a

team or sport, opportunity to participate in a practice or competition, scholarship,

admission to an educational institution, or any other benefit that accompanies par-

ticipating in the athletic program or activity.’’.

URPOSE

Girls deserve equal opportunity to compete and achieve in sports.

The Biden administration’s reinterpretation of Title IX is a slap in

the face to young women and girls, telling them their hard work,

on-field achievements, and athletic futures do not matter. Title IX

was designed to stop discrimination and ensure equal athletic op-

portunities for women. By allowing biological males to compete in

girls’ sports the Biden administration will be reversing 50 years of

progress for women. H.R. 734, the Protection of Women and Girls

in Sports Act of 2023 strengthens the law’s existing protections for

women, ensures a level playing field for female athletes, and pro-

tects the law from the Biden administration’s radical regulatory

scheme.

OMMITTEE

CTION

117TH CONGRESS

First Session—Hearings

On June 23, 2021, the Committee on Education and the Work-

force held a hearing on ‘‘Examining the Policies and Priorities of

the U.S. Department of Education.’’ The purpose of the hearing

was to review the Fiscal Year 2022 budget priorities of the U.S. De-

partment of Education. Testifying before the Committee was The

Honorable Miguel Cardona, Secretary, U.S. Department of Edu-

cation, Washington, D.C., including on the topic of the Biden ad-

ministration’s interpretation of Title IX when biological males com-

pete in women’s and girls’ sports.

Second Session—Hearings

On May 26, 2022, the Committee on Education and the Work-

force held a hearing on ‘‘Examining the Policies and Priorities of

the U.S. Department of Education.’’ The purpose of the hearing

was to review the Fiscal Year 2023 budget priorities of the U.S. De-

partment of Education. Testifying before the Committee was The

Honorable Miguel Cardona, Secretary, U.S. Department of Edu-

cation, Washington, D.C. At this hearing, concerns regarding Title

IX were raised, such as the rewriting of Title IX regulations by the

Biden administration that would seek to undermine protections for

girls and women when biological males participate in women’s

sports, the fairness for biological women participating in women’s

sports with biological males, and the administration’s official view

on biological males’ participation in women’s sports.

118TH CONGRESS

First Session—Hearings

On February 8, 2023, the Committee on Education and the

Workforce held a hearing on ‘‘American Education in Crisis’’. The

purpose of the hearing was to examine the state of American edu-

cation, including K–12 education, postsecondary education, and

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workforce development. Testifying before the Committee was Ms.

Virginia Gentles, Director, Education Freedom Center, Inde-

pendent Women’s Forum, Arlington, VA; Dr. Monty Sullivan, Presi-

dent, Louisiana Community and Technical College System, Baton

Rouge, LA; Mr. Scott Pulsipher, President, Western Governors Uni-

versity, Salt Lake City, UT; and Mr. Jared Polis, Governor, State

of Colorado, Denver, CO. During this hearing, Ms. Gentles high-

lighted Title IX for women’s sports, urging members to support

H.R. 734, the Protection of Women and Girls in Sports Act, in her

oral testimony.

On March 9, 2023, the Education and the Workforce Committee

voted to report two bills to help empower parents, students, and

women: H.R. 734, the Protection of Women and Girls in Sports Act

of 2023, and H.R. 5, the Parents Bill of Rights Act.

Legislative Action

On February 1, 2023, Rep. Greg Steube (R–FL) introduced H.R.

734, Protection of Women and Girls in Sports Act of 2023 with

Reps. Foxx, Mariannette Miller-Meeks (R–IA), Claudia Tenney (R–

NY), Robert Wittman (R–VA), Daniel Webster (R–FL), Troy

Balderson (R–OH), Ken Buck (R–CO), Ann Wagner (R–MO), Buddy

Carter (R–GA), Matt Gaetz (R–FL), Jason Smith (R–MO), Jake

Ellzey (R–TX), Morgan Griffith (R–VA), Doug LaMalfa (R–CA),

Jerry Carl (R–AL) as original co-sponsors. The bill was referred

solely to the Committee on Education and the Workforce. On

March 8, 2023, the Committee considered H.R. 734 in legislative

session and reported it favorably, as amended, to the House of Rep-

resentatives by a recorded vote of 25–17. The Committee adopted

the following amendments to H.R. 734:

1. Rep. Owens offered an Amendment in the Nature of a

Substitute (ANS) that makes a technical change and amends

section 901 of the Education Amendments of 1972 by adding

at the end the following:

shall be a violation of subsection for a recipient of Fed-

eral financial assistance who operates, sponsors, or facili-

tates athletic programs or activities to permit a person

whose sex is male to participate in an athletic program or

activity that is designated for women or girls. For the pur-

poses of this subsection, sex shall be recognized based sole-

ly on a person’s reproductive biology and genetics at birth.

Nothing in this subsection shall be construed to prohibit a

recipient from permitting males to train or practice with

an athletic program or activity that is designated for

women or girls so long as no female is deprived of a roster

spot on a team or sport, opportunity to participate in a

practice or competition, scholarship, admission to an edu-

cational institution, or any other benefit that accompanies

participating in the athletic program or activity.

OMMITTEE

IEWS

INTRODUCTION

Title IX of the Education Amendments of 1972 (Title IX) pro-

hibits any education program or activity receiving federal financial

assistance from discriminating on the basis of sex. In practice, Title

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Impact of Title IX on Women’s Sports | Billie Jean King.

https://www.federalregister.gov/documents/2022/07/12/2022-13734/nondiscrimination-on-the-

basis-of-sex-in-education-programs-or-activities-receiving-federal.

https://www.reginfo.gov/public/do/eoDetails?rrid=308363.

OCR Case No. 01–19–4025, Conn. Interscholastic Athletic Conf. et al. (Aug. 31, 2020).

B.P.J. v. West Virginia State Board of Education, Statement of Interest, 454–475 (S.D. W.V.

2021), https://www.justice.gov/crt/case-document/file/1405541/download.

IX applies to most elementary and secondary schools (including pri-

vate elementary and secondary schools participating in the school

meals programs) and to public and private colleges and univer-

sities. H.R. 734, the Protection of Women and Girls in Sports Act

of 2023, amends Title IX to prohibit recipients of federal financial

assistance that operate, sponsor, or facilitate athletic programs or

activities from permitting males to participate in any of those ac-

tivities that are designated for females. The bill also amends Title

IX to require ‘‘sex,’’ in the context of athletic activities, to be recog-

nized based solely on a person’s reproductive biology and genetics

at birth. Finally, the bill clarifies that the bill’s provisions do not

prohibit schools or institutions from permitting males to practice

against women’s sports teams, protecting the long-standing prac-

tice of some women’s athletic programs of practicing or

scrimmaging against males. H.R. 734 is important legislation that

will protect equal athletic opportunities and ensure level playing

fields for women and girls.

UNDERMINING ATHLETIC OPPORTUNITIES

Since Title IX was enacted 50 years ago, female participation in

sports has increased 1,057 percent at the high school level and 614

percent at the postsecondary level.

Title IX was designed to com-

bat discrimination against women, and it has worked.

Biden Administration Actions

Unfortunately, that progress is under threat today from the

Biden administration, which is determined to roll back women’s

progress. Last year, the Department of Education (Department)

issued a Notice of Proposed Rulemaking (NPRM) to redefine the

term ‘‘sex’’ under Title IX.

Later this year, the administration will

finalize those regulations. In addition, the Department will soon re-

lease a separate NPRM specifically related to athletics.

These regulatory actions will likely undermine the gains made by

women over the last five decades. In addition, the Department has

taken enforcement and litigation actions that make its intentions

clear. First, under the current administration, the Department dis-

missed the prior administration’s pending enforcement action re-

lated to Connecticut’s failure to require segregated sports teams

based on biological sex.

Second, the Department and the Depart-

ment of Justice filed a Statement of Interest in B.P.J. v. West Vir-

ginia State Board of Education arguing that Title IX does not allow

West Virginia to exclude biological males who identify as females

from participating in female sports.

Committee Republicans believe the Department should reverse

its interpretation of Title IX as expressed in the NPRM in full.

However, if the Department insists on finalizing these policies that

will undermine women’s athletic opportunities, the Department has

an obligation to be transparent in its intentions and to subject its

policies to proper notice and comment.

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https://www.lgbtmap.org/equality-maps/sports_participation_bans.

https://www.swimmingworldmagazine.com/news/reka-gyorgy-virginia-tech-swimmer-bumped-

out-of-b-final-in-500-free-writes-critical-letter-to-ncaa/.

https://www.foxnews.com/opinion/ncaa-girls-women-compete-level-playing-field-linnea-saltz.

https://www.dailymail.co.uk/news/article-10868453/Mayo-Clinic-doctor-confirms-trans-

swimmer-Lia-Thomas-given-unfair-advantage.html.

Id.

https://www.washingtonpost.com/dc-md-va/2022/06/13/washington-post-umd-poll-most-

americans-oppose-transgender-athletes-female-sports/.

https://www.cnn.com/2022/06/19/us/fina-vote-transgender-athletes#:∼:text=The%20new%20

gender%20inclusion%20policy,on%20the%20puberty%20Tanner%20Scale.

Impact on Women and Girls in Sports

The Department’s subterfuge on this issue is not harmless. Cur-

rently, only 19 states have policies in place to protect the integrity

of women’s athletic competitions, and even those are under threat

from the Department’s regulatory action.

Allowing men to compete

in women’s athletic activities undermines the progress made by

women and girls since Title IX’s enactment and uses a

groundbreaking antidiscrimination statute to discriminate against

the very people it was designed to protect.

Female athletes have spoken out against the damage being done.

Olympic swimmer Reka Gyorgy missed out on the opportunity to

compete in the collegiate women’s 500-yard freestyle swimming

final last March due to the presence of a biological male in the

competition. She urged the National Collegiate Athletic Association

(NCAA) to implement rules to protect the integrity of women’s

sports.

Similarly, college track and field athlete Linnea Saltz has

called out athletics administrators for depriving women of competi-

tive honors, scholarships, and the opportunities that come with

those achievements.

Unfortunately, the pleas of these athletes and other female ath-

letes have gone unheeded by the NCAA and other governing bod-

ies. The NCAA’s current policies assume that testosterone suppres-

sion will level the playing field for female athletes, but this as-

sumption is not backed by science. Dr. Michael Joyner, a physiolo-

gist with the Mayo Clinic, stated, ‘‘There are social aspects to sport,

but physiology and biology underpin it. Testosterone is the 800-

pound gorilla.’’

Another physiologist, Dr. Ross Tucker, has also

said that testosterone reductions do not reverse the physical advan-

tages biological males have in athletic competitions.

Concern about athletic opportunities for women in sports should

not be a partisan issue. Most Americans understand the threat to

women’s sports posed by the Biden administration’s actions and the

radical ideologies underlying them. A Washington Post-University

of Maryland poll conducted last year found that only three in 10

Americans believed biological males should be allowed to compete

in women’s sports.

In addition, last year, the International Swimming Federation

(FINA) approved a new policy to restrict most transgender athletes

from competing in sanctioned events, with 71.5 percent of the

international body’s member federations approving of the policy.

The FINA president stated, ‘‘We have to protect the rights of our

athletes to compete, but we also have to protect competitive fair-

ness at our events, especially the women’s category at FINA com-

petitions.’’ The international governing body for track and field re-

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https://www.nbcnews.com/nbc-out/out-news/track-governing-body-bans-transgender-

women-athletes-rcna76432.

cently took similar steps.

And yet, Democrats in Congress and

the Biden administration are determined to ignore the emerging

international consensus and the science in order to advance dis-

criminatory policies against women.

734

THE PROTECTION OF WOMEN AND GIRLS IN SPORTS

ACT OF 2023

The Committee on Education and the Workforce is advancing

this legislation to protect Title IX and the integrity of women’s ath-

letics. Women fought long and hard for equal athletic opportunity.

Unfortunately, girls are losing trophies, podium spots, public rec-

ognition, opportunities to compete, and scholarship opportunities as

incidents of males dominating girls’ athletic competitions when

competing as females are increasing nationwide. Women and girls

deserve the opportunity to comfortably experience the camaraderie

of being part of a team, but allowing males to compete with girls

disrupts the healthy competition and teamwork that allow teams

to thrive.

Ignoring the biological differences between men and women is a

catastrophe for women. It destroys a level playing field and makes

women second class citizens in their own sports. This bill clarifies

that protecting women from discrimination under Title IX means

recognizing the term ‘‘sex’’ consistently with Congress’s intent. The

bill further clarifies that forcing females to compete against males

violates Title IX’s prohibition against sex discrimination. This bill

should not be necessary. This was settled law for nearly 50 years.

Yet now, fairness and women’s equal access to athletic opportuni-

ties are again threatened, and Committee Republicans are com-

mitted to reestablishing the protections guaranteed under Title IX.

CONCLUSION

To protect women’s and girls’ opportunity to compete athletically,

H.R. 734, the Protection of Women and Girls in Sports Act of 2023,

strengthens Title IX’s existing protections for women and ensures

a level playing field for female athletes. Over the last 50 years,

Title IX has paved the way for tremendous strides in access to edu-

cation, scholarships, athletics, and more for millions of students

across the country. The intent of Title IX, an education free from

sex discrimination, remains as clear now as it was when it was

first signed into law. However, the Biden administration’s proposed

regulations and the radical left’s broader agenda are undermining

athletic opportunities for women. This legislation is absolutely es-

sential for restoring and upholding the intent of Title IX. Our

women and girls deserve nothing less.

UMMARY

734 SECTION

SECTION SUMMARY

Section 1. Short title

• This Act may be cited as the ‘‘Protection of Women and Girls

in Sports Act of 2023’’.

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Section 2. Amendment

• A substitute amendment that makes one technical change:

» Adds a violation for a federal recipient of federal financial

assistance to operate, sponsor, or facilitate athletic programs

that permit a male to participate in such programs that are

designated for women or girls.

» Adds that sex in the subsection is recognized solely on a per-

son’s reproductive biology at birth.

» Adds that the section does not prohibit males from partici-

pating in training with a women-designated program as long

as a female is not deprived of a team roster spot.

XPLANATION OF

MENDMENTS

The amendments, including the amendment in the nature of a

substitute, are explained in the body of this report.

PPLICATION OF

AW TO THE

EGISLATIVE

RANCH

Section 102(b)(3) of Public Law 104–1 requires a description of

the application of this bill to the legislative branch. H.R. 734 takes

important steps to protect girls and women in athletic programs

that are designated for girls or women.

NFUNDED

ANDATE

TATEMENT

Section 423 of the Congressional Budget and Impoundment Con-

trol Act (as amended by Section 101(a)(2) of the Unfunded Man-

dates Reform Act, P.L. 104–4) requires a statement of whether the

provisions of the reported bill include unfunded mandates. This

issue is addressed in the CBO letter.

ARMARK

TATEMENT

H.R. 734 does not contain any congressional earmarks, limited

tax benefits, or limited tariff benefits as defined in clause 9 of

House rule XXI.

OLL

ALL

OTES

Clause 3(b) of rule XIII of the Rules of the House of Representa-

tives requires the Committee Report to include for each record vote

on a motion to report the measure or matter and on any amend-

ments offered to the measure or matter the total number of votes

for and against and the names of the Members voting for and

against.

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TATEMENT OF

ENERAL

ERFORMANCE

OALS AND

BJECTIVES

In accordance with clause (3)(c) of House rule XIII, the goal of

H.R. 734 is to protect athletic opportunities for girls and women.

UPLICATION OF

EDERAL

ROGRAMS

No provision of H.R. 734 establishes or reauthorizes a program

of the Federal Government known to be duplicative of another Fed-

eral program, a program that was included in any report from the

Government Accountability Office to Congress pursuant to section

21 of Public Law 111–139, or a program related to a program iden-

tified in the most recent Catalog of Federal Domestic Assistance.

TATEMENT OF

VERSIGHT

INDINGS AND

ECOMMENDATIONS OF

THE

OMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause 2(b)(1)

of rule X of the Rules of the House of Representatives, the commit-

tee’s oversight findings and recommendations are reflected in the

body of this report.

EQUIRED

OMMITTEE

EARING AND

ELATED

EARINGS

In compliance with clause 3(c)(6) of rule XIII the following hear-

ing held during the 118th Congress was used to develop or consider

H.R. 734: ‘‘American Education in Crisis’’.

The following related hearings were held: ‘‘Examining the Poli-

cies and Priorities of the U.S. Department of Education (2021)’’ and

‘‘Examining the Policies and Priorities of the U.S. Department of

Education’’ (2022).

UDGET

UTHORITY AND

CBO C

OST

STIMATE

With respect to the requirements of clause 3(c)(2) of rule XIII of

the Rules of the House of Representatives and section 308(a) of the

Congressional Budget Act of 1974 and with respect to requirements

of clause 3(c)(3) of rule XIII of the Rules of the House of Represent-

atives and section 402 of the Congressional Budget Act of 1974, the

committee has received the following estimate for H.R. 734 from

the Director of the Congressional Budget Office:

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H.R. 734 would amend Title IX of the Education Amendments of

1972, which prohibits discrimination based on sex in education pro-

grams or activities that receive federal financial assistance. As a

condition of federal funding, H.R. 734 would require such institu-

tions to prohibit a person whose biological sex at birth was male

from participating in an athletic program or activity that is des-

ignated for women or girls, unless such participation does not deny

a female of an opportunity or benefit to participate.

Title IX applies to local education agencies, elementary and sec-

ondary schools, post-secondary institutions, libraries, and other

educational institutions that receive federal funds. The primary

means of enforcing compliance with Title IX is through voluntary

agreements between institutions and the enforcing agency, and ter-

mination of federal funds is a last resort.

Spending subject to appropriation: Enacting H.R. 734 could re-

sult in a decrease in estimated authorizations for programs admin-

istered by several agencies, including the Department of Education.

This would result from institutions failing to comply with, or choos-

ing to forgo federal funding by not complying with, the require-

ments in the bill. CBO has no basis to estimate whether or how

many institutions would do so. CBO estimates that, on average, K–

12 schools receive $275,000 each year in federal funds from pro-

grams under title I of the Elementary and Secondary Education

Act.

Direct spending: The requirement set forth in H.R. 734 also

would apply to federal student aid at postsecondary institutions

and funding for child nutrition programs at K–12 schools.

Students who enroll in programs at institutions of higher edu-

cation that meet certain criteria may receive federal student aid in

the form of Pell grants or student loans that can be used to cover

expenses at such eligible institutions. According to data from the

office of Federal Student Aid, in year 2021–2022, higher education

institutions received $108 billion in federal grant and loans, includ-

ing Pell grants and federal direct student loans. (About 20 percent

of that total was provided for Pell grants in the annual appropria-

tion act and is thus classified as discretionary spending.)

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Under the National School Lunch Program (NSLP), the School

Breakfast Program (SBP), the Child and Adult Care Food Program,

the Summer Food Service Program, and the Special Milk Program,

the government provides commodities and cash payments to reim-

burse participating schools and institutions for at least part of the

cost of each meal served. CBO estimates that the average school

that participates in the NSLP and SBP will receive about $121,800

in 2024 under those programs.

Enacting H.R. 734 could result in a reduction in direct spending

through a similar mechanism as spending subject to appropria-

tions, but CBO has no basis to predict whether, or how many, K–

12 schools and postsecondary institutions would not comply with

the requirement. As a result, CBO cannot estimate the savings re-

lated to schools not complying with that requirement.

The CBO staff contact for this estimate is Garrett Quenneville.

The estimate was reviewed by H. Samuel Papenfuss, Deputy Direc-

tor of Budget Analysis.

OMMITTEE

OST

STIMATE

Clause 3(d)(1) of rule XIII of the Rules of the House of Rep-

resentatives requires an estimate and a comparison of the costs

that would be incurred in carrying out H.R. 734. However, clause

3(d)(2)(B) of that rule provides that this requirement does not

apply when, as with the present report, the committee has included

in its report a timely submitted cost estimate of the bill prepared

by the Director of the Congressional Budget Office under section

402 of the Congressional Budget Act.

HANGES IN

XISTING

ADE BY THE

ILL

EPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (new matter is printed in italics

and existing law in which no change is proposed is shown in

roman):

EDUCATION AMENDMENTS OF 1972

* * * * * * *

TITLE IX—PROHIBITION OF SEX DISCRIMINATION

SEX DISCRIMINATION PROHIBITED

. 901. (a) No person in the United States shall, on the basis

of sex, be excluded from participation in, be denied the benefits of,

or be subjected to discrimination under any education program or

activity receiving Federal financial assistance, except that:

(1) in regard to admissions to educational institutions, this

section shall apply only to institutions of vocational education,

professional education, and graduate higher education, and to

public institutions of undergraduate higher education;

(2) in regard to admissions to educational institutions, this

section shall not apply (A) for one year from the date of enact-

ment of this Act, nor for six years after such date in the case

of an educational institution which has begun the process of

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changing from being an institution which admits only students

of one sex to being an institution which admits students of

both sexes, but only if it is carrying out a plan for such a

change which is approved by the Commissioner of Education or

(B) for seven years from the date an educational institution be-

gins the process of changing from being an institution which

admits only students of only one sex to being an institution

which admits students of both sexes, but only if it is carrying

out a plan for such a change which is approved by the Commis-

sioner of Education, whichever is the later;

(3) this section shall not apply to an educational institution

which is controlled by a religious organization if the applica-

tion of this subsection would not be consistent with religious

tenets of such organization;

(4) this section shall not apply to an educational institution

whose primary purpose is the training of individuals for the

military services of the United States, or the merchant marine;

(5) in regard to admissions this section shall not apply to any

public institution of undergraduate higher education which is

an institution that traditionally and continually from its estab-

lishment has had a policy of admitting only students of one

sex;

(6) this section shall not apply to membership practices—

(A) of a social fraternity or social sorority which is ex-

empt from taxation under section 501(a) of the Internal

Revenue Code of 1954, the active membership of which

consists primarily of students in attendance at an institu-

tion of higher education, or

(B) of the Young Men’s Christian Association, Young

Women’s Christian Association, Girl Scouts, Boy Scouts,

Camp Fire Girls, and voluntary youth service organiza-

tions which are so exempt, the membership of which has

traditionally been limited to persons of one sex and prin-

cipally to persons of less than nineteen years of age;

(7) this section shall not apply to—

(A) any program or activity of the American Legion un-

dertaken in connection with the organization or operation

of any Boys State conference, Boys Nation conference,

Girls State conference, or Girls Nation conference; or

(B) any program or activity of any secondary school or

educational institution specifically for—

(i) the promotion of any Boys State conference, Boys

Nation conference, Girls State conference, or Girls Na-

tion conference, or

(ii) the selection of students to attend any such con-

ference;

(8) this section shall not preclude father-son or mother-

daughter activities at an educational institution, but if such ac-

tivities are provided for students of one sex, opportunities for

reasonably comparable activities shall be provided for students

of the other sex; and

(9) this section shall not apply with respect to any scholar-

ship or other financial assistance awarded by an institution of

higher education to any individual because such individual has

received such award in any pageant in which the attainment

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of such award is based upon a combination of factors related

to the personal appearance, poise, and talent of such individual

and in which participation is limited to individuals of one sex

only, so long as such pageant is in compliance with other non-

discrimination provisions of Federal law.

(b) Nothing contained in subsection (a) of this section shall be in-

terpreted to require any educational institution to grant pref-

erential or disparate treatment to the members of one sex on ac-

count of an imbalance which may exist with respect to the total

number or percentage of persons of that sex participating in or re-

ceiving the benefits of any federally supported program or activity,

in comparison with the total number or percentage of persons of

that sex in any community, State, section, or other area: Provided,

That this subsection shall not be construed to prevent the consider-

ation in any hearing or proceeding under this title of statistical evi-

dence tending to show that such an imbalance exists with respect

to the participation in, or receipt of the benefits of, any such pro-

gram or activity by the members of one sex.

any public or private preschool, elementary, or secondary school, or

any institution of vocational, professional, or higher education, ex-

cept that in the case of an educational institution composed of more

than one school, college, or department which are administratively

separate units, such term means each such school, college, or de-

partment.

(d)(1) It shall be a violation of subsection (a) for a recipient of

Federal financial assistance who operates, sponsors, or facilitates

athletic programs or activities to permit a person whose sex is male

to participate in an athletic program or activity that is designated

for women or girls.

(2) For the purposes of this subsection, sex shall be recognized

based solely on a person’s reproductive biology and genetics at birth.

(3) Nothing in this subsection shall be construed to prohibit a re-

cipient from permitting males to train or practice with an athletic

program or activity that is designated for women or girls so long

as no female is deprived of a roster spot on a team or sport, oppor-

tunity to participate in a practice or competition, scholarship, ad-

mission to an educational institution, or any other benefit that ac-

companies participating in the athletic program or activity.

* * * * * * *

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(16)

20 U.S.C. § 1681.

Bostock v. Clayton County, 570 U.S. ___, 140 S. Ct. 1731 (2020).

E.g., Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020) (‘‘After the Su-

preme Court’s recent decision in Bostock v. Clayton County, we have little difficulty holding that

a bathroom policy precluding Grimm from using the boys restrooms discriminated against him

‘on the basis of sex.’ Although Bostock interprets Title VII of the Civil Rights Act of 1964, it

guides our evaluation of claims under Title IX.’’ (citations omitted)).

See Jamie Schultz, Title IX at 50: A Critical Celebration, 30 Women in Sport & Physical Ac-

tivity J., 97, 101–02 (2022).

E.g., U.S. Dep’t of Justice, Title IX Legal Manual, Addendum post-Bostock: Editors Note, Up-

dated Aug. 12, 2021, https://www.justice.gov/crt/title-ix#Bostock.

Id.

MINORITY VIEWS

NTRODUCTION

Title IX of the Education Amendments of 1972 (Title IX) states

in part, ‘‘[n]o person in the United States shall, on the basis of sex,

be excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any education program or activ-

ity receiving Federal financial assistance . . .’’

The question as to

whether ‘‘sex’’ in the context of Title IX includes sexual orientation

and/or gender identity has been the subject of court cases, federal

legislation, and administrative regulation. In 2020, the Supreme

Court held in Bostock v. Clayton County that under a plain lan-

guage interpretation of Title VII of the Civil Rights Act of 1964

(Title VII) discrimination based on an employee’s sexual orientation

or gender identity is indeed discrimination based on sex.

This

holding has since been applied to Title IX, which has been recog-

nized to prevent discrimination on the basis of sexual orientation

or gender identity.

Courts across the country have held that Title

IX requires schools to treat transgender students consistent with

their gender identity.

H.R. 734, the Protection of Women and Girls in Sports Act of

2023 would undo the holding of Bostock as it relates to women’s

athletics in education programs or activities that receive federal as-

sistance. H.R. 734 weaponizes a landmark civil rights law against

transgender youth, a critically marginalized population that federal

courts have recognized should be protected under the law, not dis-

criminated against with it.

ITLE

AND

QUAL

IGHTS

The Bostock decision had immediate repercussions for Title IX.

Although distinct statutes, federal courts have recognized that Title

VII jurisprudence informs Title IX.

As such, multiple Federal

Courts of Appeal have post-Bostock held that discrimination ‘‘on

the basis of sex’’ as defined by Title IX also includes discrimination

based on sexual orientation or gender identity.

The Departments

of Justice and Education have both issued similar determinations.

When the Department of Education (Department) issued a Notice

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U.S. Dep’t. of Educ., Summary of Major Provisions of the Department of Education’s Title

IX Notice of Proposed Rulemaking, https://www2.ed.gov/about/offices/list/ocr/docs/t9nprm-

chart.pdf.

81 Fed. Reg. 41,390, 41,537, Jul. 12, 2022 (‘‘The Department does not propose any particular

changes to § 106.41 at this time. The Department instead plans to issue a separate notice of

proposed rulemaking to address whether and how the Department should amend § 106.41 in the

context of sex-separate athletics, pursuant to the special authority Congress has conferred upon

the Secretary to promulgate reasonable regulations with respect to the unique circumstances of

particular sports.’’).

Id.

‘‘Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Fed-

eral Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams,’’

Proposed Rule, Docket ID ED–2022–OCR–0143, [Fed. Reg. Vol. __, No. __, April __, 2023], avail-

able at https://www2.ed.gov/about/offices/list/ocr/docs/t9-ath-nprm.pdf (note: as of the drafting of

these Minority views, the proposed rule had been sent to the Federal Register, but not yet pub-

lished).

U.S. Dep’t of Educ., FACT SHEET: U.S. Department of Education’s Proposed Change to its

Title IX Regulations on Students’ Eligiblity for Athletic Teams (April 6, 2023), https://

www.ed.gov/news/press-releases/fact-sheet-us-department-educations-proposed-change-its-title-

ix-regulations-students-eligibility-athletic-teams.

Id.

Scott B. Greenspan, et al., LGBTQ Youths’ School Athletic Experiences: A 40-year Content

Analysis in Nine Flagship Journals, 11 J. of LGBT Issues in Counseling 190, 191 (2017).

Erik Denison, et al., Reviewing evidence of LGBTQ+ discrimination and exclusion in sport,

24 Sport Management Rev. 389, 393 (2021).

of Proposed Rulemaking (NPRM) on Title IX in 2022, it incor-

porated the Bostock holding throughout the proposed rule, includ-

ing in the definitions of sex discrimination and sex based harass-

ment.

It is worth noting the 2022 Title IX NPRM purposefully did

not address the participation of transgender students in athletics,

with the Department announcing it would issue a proposed rule

specifically on that subject sometime in the first half of 2023.

In-

stead of waiting for the issuance of that rule, which the Depart-

ment acknowledged would recognize the ‘‘unique circumstances of

particular sports’’

but in a manner consistent with Bostock, Com-

mittee Republicans marked up H.R. 734, a bill designed to cir-

cumvent Bostock altogether as it pertains to transgender student

participation in sports. The Department has since announced a

draft rule

that would, in direct contrast to H.R. 734 but con-

sistent with the law, ‘‘establish that policies violate Title IX when

they categorically ban transgender students from participating on

sports teams consistent with their gender identity just because of

who they are.’’

Additionally, the draft rule notes that ‘‘there are

some instances, particularly in competitive high school and college

athletic environments, some schools may adopt policies that limit

transgender students’ participation.’’

However, the proposed rule

is clear that the adoption of such policies must still ‘‘protect[ ] stu-

dents from being denied equal athletic opportunity’’ but provides

schools with the ability to create their own participation policies.

School-based sports and physical education play an important

role in youth development and can contribute to physical, social,

and intellectual health. However, the majority of LGBTQ youth ex-

perience harassment in school athletics, which increases the risks

of mental health concerns and discourages physical activity.

Large scale studies have found that as high as 82% of LGB ath-

letes experience serious harassment and discrimination in a sports

context.

It is thus unsurprising that roughly two-thirds or 68% of

LGBTQ identified youth have never taken part in any school or

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Dawn Ennis, Why Are LGBTQ Youth Avoiding Sports In School? Fear Of Discrimination,

Research Shows, Forbes (Sept. 15, 2021), https://www.forbes.com/sites/dawnstaceyennis/2021/09/

15/why-are-lgbtq-youth-avoiding-sports-in-school-fear-of-discrimination-research-shows/?

sh=495e97e34195.

Alex Kulick, et al., Three strikes and you’re out: Culture, facilities, and participation among

LGBTQ youth in sports, 24 Sport, Education & Society 939, 949 (2018).

Id. at 942.

Id. at 940, 947–49.

Denison, supra note 12, at 394.

Women’s Sport Foundation, Title IX and the Rise of Female Athletes in America, (Sept. 2,

2016) https://www.womenssportsfoundation.org/education/title-ix-and-the-rise-of-female-athletes-

in-america/.

E.g., Sarah Pruitt, How Title IX Transformed Women’s Sports, History.com (June 23, 2022)

https://www.history.com/news/title-nine-womens-sports.

See, e.g., Women’s Sports Foundation, 50 Years of Title IX: We’re Not Done Yet 15, 2021

https://www.womenssportsfoundation.org/wp-content/uploads/2022/05/Title-IX-at-50-Report-

FINALC-v2-.pdf (‘‘Girls’’ retention in sports greatly impacts their future growth outside of

sports. Explicitly, girls build personal quality traits like team leadership, collaboration, and self

confidence through sports participation and learn pertinent professional skills that lead to their

success in careers after college as well as support their personal growth throughout life . . .

In a survey of 400 women executives, 94% reported having competed as athletes. Among women

C-suite executives, 52% played college sports while 39% of the women working at the manage-

ment level played college sports’’); Shia Kapos, Athletes in Congress talk women and sports, Po-

litico, July 16, 2021., https://www.politico.com/newsletters/women-rule/2021/07/16/sharice-davids-

cheri-bustos-lori-trahan-athletes-politics-493615.

community sports.

This is a much higher rate of non-participa-

tion than their peers. LGBTQ youth who do participate in school

sports report feeling less safe in athletic spaces due to bullying and

harassment.

LGBTQ youth also often experience bathrooms and

locker rooms as sites of social vulnerability and violence.

Transgender students experience even more fear and harassment

than LGB students and research supports that anti-discrimination

policies can reduce the harassment and encourage sport participa-

tion.

The American Medical Society for Sports Medicine issued a

position statement in 2020 on the need to address LGBTQ discrimi-

nation in sport.

It is shameful that H.R. 734, a bill that furthers

such discrimination, was the first bill that this Committee marked

up in the 118th Congress. To add insult to injury, the bill uses the

aegis of protecting girls and women in sports, an admirable policy

goal that is worthy of consideration by the Committee, to then do

nothing other than discriminate against trans athletes.

ITLE

AND

OMEN

’

PORTS

It is hard to overstate the transformational effect Title IX has

had on American society. In its 50-year history, Title IX has cre-

ated opportunities for millions of women and girls to participate in

sports at the high school and college levels. By 2016, two in every

five girls in the United States played sports.

This has in turn

helped create and sustain women’s professional athletic leagues

and associations.

The pursuit of equality of opportunity for girls

and women in sports has had attendant effects on the pursuit of

women’s rights in America generally. The skills, traits and other

lessons that flow from sports participation have helped women ath-

letes succeed not only in professional sports arenas, but in work-

places, boardrooms, and legislative chambers.

Further, while the public may recognize the law’s impact on

sports primarily, Title IX prohibits sex discrimination in all

vestiges of education; it has helped secure advancements for

women in academic and career fields traditionally dominated by

men and provided procedural and substantive rights for victims of

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50 Years of Title IX, supra note 20, at 7 (‘‘Pathways once closed or significantly inaccessible

to women have opened as Title IX created greater access to academic pursuits leading to careers

in an array of occupations for women, including but not limited to astronauts, athletes, car-

penters, chief executive officers, construction workers, doctors, engineers, entrepreneurs, farm-

ers, filmmakers, firefighters, football coaches, investors, journalists, lawyers, musicians, police

officers, military personnel, rock stars, Supreme Court justices, and television news anchors.’’);

U.S. Dep’t of Justice, Title IX Legal Manual D. Sexual Harassment, Updated Aug. 12, 2021,

https://www.justice.gov/crt/title-.ix#D.%C2%A0%20Sexual%20Harassment.

Nat’l. Ctr. for Educ. Stats., Fast Facts: Title IX, https://nces.ed.gov/fastfacts/

display.asp?id=93.

Schultz, supra note 4, at 97.

Id.

Zara Abrams, Title IX: 50 Years Later, Am. Psych. Ass’n. News & Advocacy (June 28, 2022)

https://www.apa.org/news/apa/2022/title-ix-landmark.

Anne Blaschke, Title IX has been spectacularly successful and disturbingly unfulfilled,

Wash. Post, June 23, 2022, https://www.washingtonpost.com/outlook/2022/06/23/title-ix-has-been-

spectacularly-successful-disturbingly-unfulfilled/.

50 Years of Title IX, supra note 20, at 28.

Rachel Triesman, The U.S. national women’s soccer team wins $24 million in equal pay set-

tlement, NPR, Feb. 22, 2022, https://www.npr.org/2022/02/22/1082272202/women-soccer-

contracts-equal-pay-settlement-uswnt.

Emine Yucel, Men’s And Women’s NCAA March Madness Facilities, Separate And Unequal,

Spark Uproar, NPR, Mar. 29, 2021, https://www.npr.org/2021/03/19/979395795/mens-and-

womens-ncaa-march-madness-facilities-separate-and-unequal-spark-uproar.

H.R. 9615, 117th Cong. (2022).

sex discrimination, sex harassment and sexual assault in edu-

cational settings, irrespective of their gender.

Despite the progress made under Title IX, there are still numer-

ous obstacles to true equality for girls and women in educational

settings, especially high school and college sports. While girls’’ par-

ticipation in sport has increased 1000% since Title IX, their partici-

pation numbers have still not reached that of boys’ 50 years ago.

At its half-century mark, approximately 90% of all educational in-

stitutions are not in compliance with Title IX.

Many top athletic

programs spend 40 50% more in support of their men’s teams than

their comparable women’s teams.

Schools across the country

apply the law selectively, sometimes inflating numbers to give the

illusion of equity where it does not exist.

Additionally, a lack of

enforcement, particularly on issues of sexual abuse and bigotry,

has obstructed IX’s potential to normalize equal treatment across

sex and gender in education.

Female athletes and their advocates continue to campaign for

equal access to participation opportunities in sports and, once they

are participants, equitable treatment compared to their male coun-

terparts.

Whether it is the four-time World Champion U.S. Wom-

en’s National Soccer Team filing a successful pay discrimination

complaint against U.S. Soccer with the Equal Employment Oppor-

tunity Commission (EEOC),

or student athletes in the NCAA

Women’s Basketball National Tournament taking to social media to

document the inequitable training facilities they were offered,

women athletes continue to experience inequitable treatment in

sports and too often must take it upon themselves to fight discrimi-

nation. It is for these reasons that Committee Democrats offered

several amendments to H.R. 734, to attempt to live up to the aims

of the bill’s title—namely the protection of women and girls in

sports.

The first was the Democratic substitute, offered by Rep. Alma

Adams (D–NC), modeled after her bill the Fair Play for Women

Act.

The Adams amendment expanded reporting requirements for

K–12 and college athletics data, and made all information easily

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Athletics, 34 C.F.R. § 106.41.

50 Years of Title IX, supra note 20, at 28.

Rachel Triesman, The U.S. national women’s soccer team wins $24 million in equal pay set-

tlement, NPR, Feb. 22, 2022, https://www.npr.org/2022/02/22/1082272202/women-soccer-

contracts-equal-pay-settlement-uswnt.

Emine Yucel, Men’s And Women’s NCAA March Madness Facilities, Separate And Unequal,

Spark Uproar, NPR, Mar. 29, 2021, https://www.npr.org/2021/03/19/979395795/mens-and-

womens-ncaa-march-madness-facilities-separate-and-unequal-spark-uproar.

U.S. Dept. of Educ., Off. for Civ. Rts., Title IX and Athletic Opportunities in K–12 Schools,

Feb. 2023 https://www2.ed.gov/about/offices/list/ocr/docs/ocr-k12.

accessible to the public, so students and parents could see how

schools are claiming Title IX compliance with the hopes that such

sunlight would expose athletic programs that are using fuzzy math

to appear Title IX compliant. Further the amendment would make

athletic associations like the National College Collegiate Associa-

tion (NCAA) explicitly liable under Title IX as we know some of the

more famous examples of disparities in women’s and men’s ath-

letics have come to light during NCAA events. The Adams amend-

ment provided a private right of action for athletes to push for

change at their schools, and also empowered the Department to

levy fines on colleges it found non- compliant with Title IX. And

perhaps most importantly, the bill would have required annual

Title IX training for athletes, and athletic department and athletic

association staff, so that all coaches, trainers, and other personnel

would know their responsibilities under Title IX, fostering a cul-

ture of compliance. The Chair ruled that the Adams amendment

was not germane to the fundamental purpose of the underlying bill,

preventing trans girls and women from participating in girls’ and

women’s sports.

Rep. Mark Takano (D–CA) offered two amendments designed to

build upon the protections of Title IX for women and girls. The first

amendment codified the existing regulations related to athletics

promulgated under Title IX.

While these regulations are long

standing, they are often the very regulations that schools are not

in compliance with, sustaining the disparities between men’s and

women’s athletic programs. Female athletes and their advocates

continue to campaign for equal access to participation opportunities

in sports and, once they are participants, equitable treatment com-

pared to their male counterparts.

Whether it is the four- time

World Champion U.S. Women’s National Soccer Team filing a suc-

cessful pay discrimination complaint against U.S. Soccer with the

Equal Employment Opportunity Commission (EEOC),

or student

athletes in the NCAA Women’s Basketball National Tournament

taking to social media to document the inequitable training facili-

ties they were offered,

women athletes continue to experience in-

equitable treatment in sports and too often must take it upon

themselves to fight discrimination.

Recognizing the numerous instances where educational programs

may fall short of the mark protecting the rights of athletes, in early

2023 the Department issued resource documents for schools and

colleges to help them ‘‘evaluate whether a school is meeting its

legal duty to provide equal athletic opportunity based on sex con-

sistent with Title IX.’ ’

The documents provide an extensive over-

view of the benefits, opportunities, and treatment men’s and wom-

en’s teams may receive and offer examples and queries to help de-

termine whether a school is meeting its Title IX obligations. It pro-

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Id.

H.R. 734 § 2, 118th Cong. (2023).

Id. When not directly quoting bill text, this report will use the terminology ‘‘sex assigned

at birth’’ a term the medical community has determined is more inclusive of the variety of sex

and gender possibilities we realize are possible. University of Washington Medicine, LGBTQ+

Inclusion: Glossary, (2023) https://www.uwmedicine.org/practitioner-resource/lgbtq/lgbtq-

inclusion-glossary.

Based on statistics for the number of live births in the US in 2021, and rates of birth of

intersex children and children with ambiguous genitalia, there are approximately 2,600 to 6,000

births each year in the U.S. where a child’s genitalia may not correspond with either a male

or female assigned sex. Cleveland Clinic, Atypical Genitalia (Formerly Known as Ambiguous

Genitalia), Mar. 29, 2022, https://my.clevelandclinic.org/ health/diseases/22470-atypical-genitalia-

formerly-known-as-ambiguous-genitalia (‘‘Atypical genitalia occurs in about 1 out of every 1,000

to 4,500 births’’); Intersex Society of North America, How common is Intersex, (2008) https://

isna.org/faq/frequency/ (‘‘If you ask experts at medical centers how often a child is born so no-

ticeably atypical in terms of genitalia that a specialist in sex differentiation is called in, the

number comes out to about 1 in 1500 to 1 in 2000 births.’’).

vides worksheets to analyze whether a school is meeting obliga-

tions related to athletic scholarships and financial assistance, and

meeting the interests and abilities of student athletes.

These doc-

uments, while illustrative and helpful, do not carry the force of law.

By codifying the existing Title IX athletic regulations into law,

the Committee could signal that we were prepared to build upon

the 50 years of progress under Title IX, with the expectation that

the Department could provide more clarity to schools in a new

round of regulation of how they can work to ensure equity in ath-

letics, protecting women and girls in sports. The Chair ruled that

the Takano amendment was not germane to the fundamental pur-

pose of the underlying bill, preventing trans girls and women from

participating in girls’ and women’s sports.

The second Takano amendment simply expressed a sense of Con-

gress that all people should have the right to participate in sports

free from discrimination, and that student athletes have particular

rights to train and play in safe environments, be treated with dig-

nity and respect, retain a right to privacy over their bodies, and

that all students, including transgender students, should be pro-

tected. Again, the Chair ruled that this language was non-germane

to the underlying bill.

Rep. Suzanne Bonamici (D–OR) offered an amendment that both

protected women and spoke to the practicality of H.R 734—in a

world where H.R. 734 became law, how would schools determine

whether an athlete’s ‘‘sex is male’’?

As the bill defines sex as

based ‘‘solely on a person’s reproductive biology and genetics at

birth’’,

supporters of H.R. 734 would suggest that simply pro-

viding the sex assigned at birth on a birth certificate would be suf-

ficient proof. But we know of the approximately 3.6 million births

in the U.S. every year, a considerable number of children are born

either intersex or with ambiguous genitalia.

This does not include

children born with chromosomal variations other than XX and XY

which may only present themselves later in life. This would sug-

gest before even considering trans athletes, birth certificates will

not accurately reflect the ‘‘biological’’ or ‘‘genetic’’ sex of all chil-

dren. Recognizing this, enforcement of H.R. 734 will likely require

female student athletes to either subject themselves to genital ex-

amination or to disclose their menstruation data—both enforce-

ment mechanisms that have been proposed as part of trans sports

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See, e.g., Philip Marcelo, Florida weighs mandating menstrual cycle details for female ath-

letes, Associated Press, Feb. 3, 2023; Aleks Phillips, Kansas GOP Bill Authorizes Genital Exams

of Schoolchildren, Critics Say, Newsweek, Apr. 6, 2023.

Based on questionnaire data collected by the Centers for Disease Control and Prevention

as part of the 2017 Youth Risk Behavior Survey conducted in 10 U.S. states and 9 large urban

school districts. The survey defined ‘‘transgender’’ individuals as those whose gender identity

does not align with their sex. ‘‘Across the 19 sites, 94.4% (range = 94.0%–94.8%) of students

responded ‘‘No, I am not transgender’’; 1.8% (range = 1.0%–3.3%) responded ‘‘Yes, I am

transgender’’; 1.6% (range = 0.9%–2.5%) responded ‘‘I am not sure if I am transgender’’; and

2.1% (range = 1.5%–4.7%) responded ‘‘I do not know what this question is asking.’’ Ctrs. for Dis-

ease Control & Prevention, Morbidity and Mortality Weekly Report: Transgender Identity and

Experiences of Violence Victimization, Substance Use, Suicide Risk, and Sexual Risk Behaviors

Among High School Students—19 States and Large Urban School Districts, 2017, (Jan. 25,

2019), https://www.cdc.gov/mmwr/volumes/68/wr/mm6803a3.htm.

Cyd Zeigler & Karleigh Webb, These 35 trans athletes have competed openly in college,

Outsports, Mar. 29, 2023, https://www.outsports.com/trans/2022/1/7/22850789/trans-athletes-

college-ncaa-lia-thomas (‘‘Outsports knows there are countless other trans athletes who have

competed at the collegiate level who have not been publicly out or out to teammates.’’)

Tinbete Ermyas & Kira Wakeham, Wave of Bills to Block trans Athletes Has No Basis In

Science, Researcher Says, NPR, Mar. 18, 2021, https://www.npr.org/2021/03/18/978716732/wave-

of-new-bills-say-trans-athletes-have-an-unfair-edge-what-does-the-science-s.

Schultz, supra note 4, at 101.

E.g., Press Release, NCAA, Board of Governors updates transgender participation policy,

Jan. 19, 2022, https://www.ncaa.org/news/2022/1/19/media-center-board-of-governors-updates-

transgender-participation-policy.aspx.

bans at the state level.

Rep. Bonamici’s amendment would have

foreclosed on the latter, but it was defeated.

HR 734 I

BOUT

ROTECTING

OMEN

’

PORTS

THE FAULTY ASSUMPTIONS OF H

734

Unfortunately, the theory behind H.R. 734 is that the participa-

tion of trans women in girls’ and women’s sports is the policy issue

from which these sports need the most urgent ‘‘protection’’.

Further this need to protect sports justifies the decision to make

the bill the first to be marked up in the 118th Congress. Putting

aside the blatant offensiveness of such a policy argument for the

moment, it is important to note multiple points.

First, transgender youth are a tiny fraction of the youth popu-

lation in this country (roughly 1.8%), and an even smaller fraction

of that already small population are involved in athletics.

It ap-

pears there are only 35 documented instances of out trans athletes

competing at the collegiate level.

To suggest that the participa-

tion of 35 women athletes among the approximately 110,000

women athletes that compete yearly in college sports somehow jus-

tifies congressional action at this time is ludicrous. Experts in the

field of genetics, science, and sport have stated that discrimination

against transgender student athletes is not based on science.

Ad-

ditionally, participation in sports has significant benefits for

transgender students including higher academic performance and

lower rates of depression and suicidality.

Many regional and na-

tional athletic associations are establishing or revisiting polices on

gender equity and non-discrimination in athletic participation at

this time.

This is an important step in the development of policy

and there is no urgency that suggests Congress need involve itself

at this time.

This is especially true as we know transgender youth are cur-

rently experiencing challenges to nothing less than their right to

exist. H.R. 734 is just one of many proposals that collectively aim

to ostracize trans youth and trans individuals from the public

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A Congress.gov search of ‘‘biological sex’’, a term known not to be inclusive of the LGBTQ+

community was used in least eight bills introduced in the 117th Congress, including H.R. 8731,

Protect Children’s Innocence Act, H.R. 8171, Protect Minors from Medical Malpractice Act of

2022, and H.R. 1926 Protecting Children From Experimentation Act of 2021. https://

www.congress.gov/quick-search/legislation?wordsPhrases=%22biological+sex%22&word

Variants=on&congressGroups%5B%5D=0&congresses%5B%5D=117&legislation

Numbers=&legislativeAction=&sponsor=on&representative=&senator=.

Brooke Migdon, Transgender Children Are More Likely to Fce Mental Health Challenges,

Study Says, The Hill, Jul. 22, 2022, https://thehill.com/changing-america/well-being/mental-

health/3570956-transgender-children-are-more-likely-to-face-mental-health-challenges-study-

says/.

Carolyn Jones, Transgender Youth Almost 10 Times More Likely to be Homeless as Their

Peers, Data Shows, EDSource, June 7, 2021, https://edsource.org/updates/transgender-youth-

almost-10-times-more-likely-to-be-homeless-as-their-peers-data-shows.

U.S.Dep’t. of Health and Hum. Svcs., Off. of Disease Prevention and Health Promotion, So-

cial Determinants of Health Summaries: Graduation, https://health.gov/healthypeople/priority-

areas/social-determinants-health/literature-summaries/high-school-graduation.

James Factora, Florida Lawmakers Proposed Allowing Trans Kids to be Removed from Sup-

portive Parents, Them, Mar. 8, 2023, https://www.them.us/story/florida-bill-trans-kids-

supportive-parents.

Miranda Mazariegos & Meghan Collins Sullivan, Efforts to Ban Books Jumped an ‘Unprece-

dented’ Four-fold in 2021, ALA Report Says, NPR, Apr. 4, 2022, https://www.npr.org/2022/04/04/

1090067026/efforts-to-ban-books-jumped-an-unprecedented-four-fold-in-2021-ala-report-says.

Movement Advancement Project, ‘‘Bans on Transgender Youth Participation on Sports’’,

https://www.lgbtmap.org/equality-maps/sports_participation_bans, (last visited, April 7, 2023).

Diana Goetsch, Opinion: What the CPAC Speaker Meant When He Said ‘Transgenderism

Must Be Eradicated’, L.A. Times, Mar. 8, 2023, https://www.latimes.com/opinion/story/2023-03-

08/transgender-cpac-michael-knowles-rolling-stone-ron-desantis.

arena.

Research shows that due to stigma, trans youth experi-

ence depression and suicidal ideation at disproportionate rates

compared to their peers.

Recent data from the CDC show that

transgender youth are 10 times more likely to experience homeless-

ness.

Transgender students are also more likely to feel unsafe at

school, to experience bullying and other forms of violence including

being threatened with a weapon at school, and social isolation. Ex-

periences of a hostile school climate, potentially compounded by an

unstable living situation, lead to disproportionate drop out rates for

these students.

Barriers to attaining school success have not in-

spired our Republican colleagues to create policies to improve out-

comes for this group of students. Rather, around the country we

see organized attacks against these students. In the first three

months of 2023, more than 380 anti-transgender state bills have

been introduced, including a bill in Florida that would remove

transgender children from their homes if their parents support and

affirm them.

Bills targeting curriculum inclusion, often referenced as ‘‘Don’t

Say Gay’’ bills, censor teacher’s speech by prohibiting mention of

LGBTQ people or gender diversity in their classrooms. The Amer-

ican Library Association reports that attempts to ban books in

schools are up four-fold with the top three most banned books ad-

dressing themes of transgender identity or gender non-con-

formity.

Twenty states now prohibit transgender students from

participating in school sports aligned with their gender.

The focus

of these coordinated attacks was made all the more clear in early

March 2023, when a speaker announced from the Conservative Po-

litical Action Conference stage that ‘‘transgenderism must be eradi-

cated from public life entirely.’’

This bill is an attempt to draw

the federal government into the on-going GOP attacks on

transgender people. Discriminating against a specific minority

group with whom the Majority disagrees cannot be a legitimate

governmental interest. For all these reasons, Rep. Pramila Jayapal

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E.g., Women’s Sports Foundation, Participation of Transgender Athletes in Women’s Sports,

https://www.womenssportsfoundation.org/wp-content/uploads/2016/08/participation-of-

transgender-athletes-in-womens-sports-the-foundation-position.pdf.

(D–WA) offered the last Democratic amendment to rename the bill

the Stigmatizing Vulnerable Children Act of 2023. The amendment

was defeated.

Last but most important to the stated policy goal of H.R. 734, the

majority of women athletes and their advocates do not consider the

participation of transgender youth in women’s sports an existential

threat to their survival.

To the contrary, many woman’s groups

have recognized that inclusion of trans youth is an opportunity to

share the attendant benefits of sports participation with all women

regardless of their gender identity.

EMOCRATIC

MENDMENTS

FFERED

URING

ARKUP OF

H.R. 734

Committee Democrats offered five amendments to improve the

bill. These amendments would have refocused the bill on issues

that Women athletes have actually advocated for to protect their

sports. Committee Republicans rejected two of the five amend-

ments, and ruled the others out of order. Ranking Member Scott

noted during consideration of H.R. 734 that simply because an

amendment was not germane, that did not require the Chair to

rule it as such, and if it improved the bill, it should get an up or

down vote on its inclusion. The Chair was not willing to do that.

These are the Democratic amendments that were considered:

Amendment Offered By Description Action Taken

2 ........................ Ms. Adams .................................. Democratic Substitute ................. Ruled non-germane

3 ........................ Ms. Bonamici .............................. Protection of student athlete

menstrual data.

Defeated

4 ........................ Mr. Takano .................................. Codification of existing Title IX

Athletic equity regulations.

Ruled non-germane

5 ........................ Mr. Takano .................................. Student Athletes Bill of Rights ... Ruled non-germane

6 ........................ Ms. Jayapal ................................. Re-titled the bill ......................... Defeated

ONCLUSION

For the reasons stated above, Committee Democrats unani-

mously opposed H.R. 734 when the Committee on Education and

the Workforce considered it on March 8, 2023. We urge the House

of Representatives to do the same.

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