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Dive Brief:

  • Texas lawmakers appear poised to pass a bill that would ban transgender athletes in public colleges from participating in sports aligned with their gender identity, drawing ire from pro-LGBTQ+ organizations.
  • The Texas House of Representatives signed off on proposed legislation Thursday in a 95-50 vote. It now returns to the Senate for a final vote, and is widely expected to win approval from Gov. Greg Abbott, a Republican.
  • The measure would also shield whistleblowers who report colleges for potentially violating the law and allow individuals to file civil lawsuits against institutions. 

Dive Insight:

Conservative policymakers across the U.S. have introduced a flurry of bills seeking to block rights for transgender people in recent months.

Texas is a chief battleground for these issues, as anti-trans proposals have the backing of prominent lawmakers. The bill restricting transgender college athletes was a priority this year for the state’s lieutenant governor, Republican Dan Patrick, who also presides over the Senate as its president. 

The draft legislation would broaden a similar prohibition in K-12 schools that Texas lawmakers passed in 2021. 

The state legislature this week also approved a bill that would ban gender-affirming care for minors. The American Civil Liberties Union of Texas immediately pledged to sue if Abbott signed it.

The Texas ACLU similarly railed against the college-centered bill, writing on Twitter that students should be able to “play the sports they love as their true selves — free from extreme government overreach and cruel political attacks.”

The group did not say whether it would pursue a lawsuit over the bill. But the legislation could run into other legal trouble.

The U.S. Department of Education issued a Title IX regulatory proposal last month that could, in some circumstances, cause transgender student-athletes to be excluded from sports of their choosing. Title IX is the federal law banning sex discrimination in federally funded schools.

However, it would not allow categorical bans on transgender athletes on teams aligned with their gender identity. 

And if the Education Department finalizes the rule as is, “there will be a good argument that the Texas law cannot be enforced against schools that accept federal funding because it is inconsistent with federal law,” Joshua Richards​​​​, partner at the law firm Saul Ewig, said in an email. 

“Whether the Biden rule actually preempts the Texas law could depend on the final wording of the rule,” said Richards, who specializes in Title IX.

The Education Department has said it will finalize the athletics rule, and another broader Title IX draft regulation this month, though this timetable seems increasingly unlikely, as neither proposal has reached the end stages of the regulatory process.

Still, Richards said it’s possible that even before a final rule, the U.S. Department of Justice or another party could sue over the Texas law clashing with Title IX.

He noted the Education and Justice departments supported a 2021 lawsuit that sought to overturn a West Virginia law barring trans athletes from participating in sports consistent with their gender identity. That could happen again, he said.

Meanwhile, the NCAA last year changed its policies and will evaluate whether transgender athletes can participate on a sport-by-sport basis. This broke from its long-standing rules, which allowed transgender men to join men’s teams. In order for transgender women to participate in women’s teams, they had to take testosterone suppression medication for one prior calendar year.

The NCAA’s policy is still being phased in, but it’s attracted criticism for being difficult to understand and enforce. LGBTQ+ advocates have also accused the NCAA with its new policy of succumbing to public and political pressures over its decision to permit a transgender woman, Lia Thomas, to compete on the University of Pennsylvania’s women’s swim team.