Lame duck Congressmember Tulsi Gabbard of Hawaii is giving a big middle finger to transgender and non-binary athletes on her way out of Washington with a new bill seeking to exclude trans women and some non-binary individuals from protections under Title IX.
The proposal by Gabbard and Republican co-sponsor Markwayne Mullin of Oklahoma adds to a dangerous trend fueled by the religious right and the Trump administration aimed at sidelining transgender women — and anyone assigned male at birth but whose gender identity does not align with that — in girls’ and women’s sports. While anti-LGBTQ legal groups like the Alliance Defending Freedom have turned to multiple states to launch legal battles on the issue, the Trump administration’s Department of Education has also sought to use Title IX to kick trans and non-binary athletes off the playing field.
The administration has gone so far as to launch intersectional attacks by threatening to block funding for racial desegregation programs in retaliation against schools allowing trans athletes to participate in accordance with their gender identity.
Now Gabbard, the one-time Democratic presidential wannabe, is gleefully hopping aboard the Trump train. Her new legislation notes that when considering compliance with Title IX, “sex shall be determined on the basis of biological sex as determined at birth by a physician.”
“Title IX is being weakened by some states who are misinterpreting Title IX, creating uncertainty, undue hardship and lost opportunities for female athletes,” Gabbard said in a written statement, echoing the kinds of transphobic arguments made by the far right. “Our legislation protects Title IX’s original intent, which was based on the general biological distinction between men and women athletes based on sex. It is critical that the legacy of Title IX continues to ensure women and girls in sports have the opportunity to compete and excel on a level playing field.”
That law was subsequently quashed by a federal judge who pointed to the June Supreme Court ruling in Bostock v. Clayton County, which concluded that gender identity and sexual orientation are covered as protected classes under the definition of sex in Title VII of the 1964 Civil Rights Act. While the immediate impact of that decision was confined to employment, it is widely expected to have a broader impact in other areas such as housing, public accommodations, access to credit, and in public schools and universities.
Nonetheless, the threats targeting trans athletes are notably not just confined to the United States. World Rugby, which spearheads the Rugby World Cup every four years, imposed a new ban on trans women in October, representing a major warning sign considering that it was the first international sports governing body to take such a step.
A press release distributed by Gabbard’s office referred to “the average difference in abilities conferred by biological sex” without providing any evidence, while Mullin described trans women as “biological males” in explaining his posture on the issue.
“Title IX was designed to give women and girls an equal chance to succeed, including in sports,” Mullin said in a written statement. “Allowing biological males to compete in women’s sports diminishes that equality and takes away from the original intent of Title IX. As the father of three girls involved in athletics, I want them to be able to compete on a level playing field. I am proud to lead this bill that will safeguard the integrity of women’s sports and ensure female athletes can compete fairly.”
Unsurprisingly, Gabbard and Mullin have poor records on LGBTQ issues and both have a history of opposing marriage equality. Gabbard’s father, Mike Gabbard — a longtime state senator in Hawaii who is still in office — led multiple anti-LGBTQ groups including Stop Promoting Homosexuality Hawaii and the Alliance for Traditional Marriage and Values. When his daughter was mounting a bid for the Hawaii State Legislature in 2002, she revealed her own close ties to her father’s work against the community.
“Working with my father, Mike Gabbard, and others to pass a constitutional amendment to protect traditional marriage, I learned that real leaders are willing to make personal sacrifices for the common good. I will bring that attitude of public service to the Legislature,” Gabbard said at the time, according to the Honolulu Star-Bulletin.
Gabbard subsequently sought to clean up that mess — likely because she had national ambitions — and she signed onto the Equality Act last year.
But she isn’t fooling anyone anymore.
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