Play Like a Girl: Bostock, Title IX’s Promise, and the Case for Transgender Inclusion in Sports

State-level legislation focused on the transgender1 community has exploded over the last several years.2 Proposed laws mandating the exclusion of transgender individuals from specific sectors of society have been increasingly focused on trans children and youth.3 In 2021, legislatures in thirty-one states introduced bills that would prohibit transgender student-athletes from taking part in school sports in a manner consistent with their gender identities.4 Eight of those states ultimately passed laws barring young women who are trans from participating in girls’ and women’s sports programs sponsored by federally- funded schools.5 Idaho enacted a bill that blocked transgender women and girls from competing in sex-segregated athletics in 2020.6 Additionally, during the first several months of 2022, three additional states have passed legislation regulating transgender youth’s participation in sports, bringing the total number of states with such laws to twelve.7 Opponents of transgender inclusion in sports allege that allowing trans girls and women to participate in girls’ and women’s sports will harm their cisgender8 peers.9 Arguments about these alleged harms primarily center on the concept of fair play in women’s sports.10 Legislators introducing such bills claim that transgender athletes will displace cisgender athletes without wholesale bans on transgender women’s participation.11 This Comment will examine transgender girls’ and women’s access to sex-segregated sports under Title IX. Part II will provide an overview of relevant law, including Title IX, Title VII, and the Equal Protection Clause. Part III will analyze state laws regulating transgender students’ participation in sex-segregated sports. Section A will apply the Equal Protection Clause, scrutinizing the dividing line between permissible distinctions based on “real” physiological differences and impermissible distinctions based on gender stereotypes and the means-ends fit between the recent bans and stated policy aims. Section B will analyze and apply Title IX’s plain language and purpose, ultimately concluding that transgender women and girls must be allowed to participate in athletics in a manner consistent with their gender identity