Melissa Harris-Perry: I'm Melissa Harris-Perry, and this is The Takeaway. In Texas, lawmakers are currently considering a bill that would ban transgender students from playing on sports teams that align with their gender identity. After passing in the state senate in three separate sessions this year, SB3 just needs to pass in the Texas House. Texas is just one of many states that have placed restrictions on transgender student athletes in recent years. In total, at least 30 states have introduced similar legislation, and it's become law in eight. For more on this, we're joined now by Katie Barnes, features writer at ESPN. Katie, it's so great to have you here.

Katie Barnes: Thanks for having me. I'm really excited to talk about this.

Melissa Harris-Perry: Why did state legislators decide this year that trans kids were a big threat who needed to be legislated against?

Katie Barnes: This is something that's been building over the course of a handful of years. The first law passed in Idaho in 2020. After that, there was a wave of legislation that mirrored that law, but previous to even Idaho passing its law, there had been examples of states looking to pass into law legislation that was similar, whether it was regulating high school athletics and collegiate athletics through birth certificate or looking to overturn an existing policy at that state's high school association. It's been a building conversation, and this year is the year that it really broke through because so many states considered such legislation and then many passed it.

Melissa Harris-Perry: Now, I'm wondering if these sets of laws are much like the bathroom bills that we saw in an earlier wave which talk about birth certificates and gender identity and sex assigned at birth but also were using a narrative of protecting girls and women. The bathroom bills kept coming back to this language about safety in the bathroom for girls and women. What I'm wondering is if there is a similar discourse here about sports, that even though it's about trans athletes, that there is a particular focus on girls' sports.

Katie Barnes: There is. A number of the bills are actually titled the Save Women's Sports Act or Protect Women's Sports or Fairness in Girls' Sports, something like that. Thematically, there is a lot of discussion around the sanctity of girls' and women's sports and the need to protect the integrity of that category, so transgender girls and transgender women have become the intense focus of many of these pieces of legislation. However, it is important to note that there are examples of states either considering legislation that would affect transgender boys or in the case of Alabama does affect transgender boys explicitly in the text.

Melissa Harris-Perry: Can you say a little bit more about the Alabama text?

Katie Barnes: Yes. In Alabama, the law does not just restrict participation around transgender girls and women participating in girls' and women's sports, it also protects the boys' and men's category as well. Folks who are assigned female at birth are not eligible to play boys' sports in Alabama according to that law unless there is no equivalent girls' sporting category. There is no girls' wrestling in Alabama, there's no girls' football in Alabama, but there is girls' soccer. There is girls' track and field. It gets really muddy and complicated very fast, but that is in the text itself. It goes both ways.

Melissa Harris-Perry: Katie, let's talk a bit about these scientific myths about gender and sexuality that you are beginning to frame here, and thinking about this challenge that we have had these separate sports spheres, this kind of dichotomy at a time that we're coming to understand that these dichotomies may not even be an accurate way to understand and categorize human beings.

Katie Barnes: Yes. I think a lot of the stuff about the science is just that it doesn't really say what anyone wants it to say, if that makes sense. There's so little data around not just transgender athletes but transgender athletes at specific ages who are experiencing different forms of puberty, who may or may not be hormone replacement therapy, and the effects of, for example, taking hormone replacement therapy and puberty blockers on athletic performance for those who are assigned male at birth who never go through [unintelligible 00:04:43] male puberty.

There's so little information about the specifics of the conversation being had, and instead, there's a lot of assumption that's rooted in our cultural norms around what we assume to be true when it comes to gender and how that plays out in sports, so it gets very complicated very fast simply because everyone is operating from their own frameworks, their own experiences, and applying that in a really broad-based macro way.

Melissa Harris-Perry: Help us to understand how Title IX is at this intersection? Shouldn't Title IX be offering some protections?

Katie Barnes: There's a question about who Title IX applies to. That is something that has been fought at the federal level across three administrations at this point and is really the underlying discussion that spurred a lot of the public debate on this issue. The Obama Administration passed A Dear Colleague Letter in 2016 that would have included transgender kids to be protected in schools including locker rooms and athletics.

In response to the issuing of that guidance, 23 states eventually sued the Obama Administration, and it was blocked in federal court and never went into effect. Then when the Trump Administration took office, one of the first things they did was rescind that guidance. Now there's discussion about what's the new guidance going to be from the Biden Administration. The current Secretary of Education has been unequivocal in his support for transgender youth, but there is no federal policy.

Right now what is occurring is a debate over the interpretation of Title IX Law and whom Title IX protects and not a discussion about what is the federal law that deals with transgender athletes specifically. As these cases are continuing to be litigated as they affect transgender youth, so looking at the Gavin Grimm case, which was recently settled. Then also even the effects of Bostock from last year that affected employment law in Title VII as it applies to transgender people and also the LGBTQ community more broadly in those protections.

That is a real site of contention between everybody because there isn't an explicit nod in a law that was written in 1972 before we were really having these discussions about gender so publicly and so broadly.

Melissa Harris-Perry: What are some of the other legal options for these young athletes and their families? Maybe even just sort of the strategies, what are they trying right now to protect themselves against these laws?

Katie Barnes: Families right now are lobbying in almost every state. Any time there is a state that's considering these bills, these families go to the State House and they tell their stories to their legislators. That is happening over and over and over again. In a state like Texas which has had hearing after hearing on its piece of legislation, these families go and have these conversations publicly and privately if some of them are not out publicly with their legislators begging them to not pass these laws. Then once they are passed, there have been a number of lawsuits that have been filed.

In Idaho, that law never went into effect. It was blocked the August of that same year it passed in federal court because of a lawsuit. In West Virginia, there was a preliminary injunction granted to a specific student so that she could try out for her cross-country team, but the law is continuing to be litigated. There's been lawsuits filed in Florida with promises of litigation in all of the rest of the states that have actually passed a bill like this into law. That seems to be where the focus is right now, is once the bill becomes law, suing and trying to get an injunction or get the law thrown out, but those things take time. The longer they take, the more kids who aren't being able to play sports.

Melissa Harris-Perry: Yes, in the meantime, kids are matriculating through school. Yes, absolutely. Katie Barnes is a features writer at ESPN. Katie, thank you so much for joining us.

Katie Barnes: Thank you for having me. I really appreciate it.

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