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Transgender Student Athletes ‘Just Want to Play.’ Will Federal Law Assure They Can?

When Sivan Kotler-Berkowitz steps onto the soccer field, his stress, fears, and worries wash away.

He’s no longer a 17-year-old boy, a high school senior, or a transgender advocate; he’s a center forward, one essential cog in the machine of a high school sports team. For Kotler-Berkowitz, that’s the best feeling.

“I’m just there with my teammates,” he said. “We’re all going for one goal: to win the game, to learn, and to have fun. Nothing else really matters in that moment.”

But when he’s off the field, Kotler-Berkowitz, and the small number of transgender athletes like him, are in limbo, waiting for government officials to decide if and how they can play the sport they love. Much of that may hinge on an upcoming interpretation of Title IX, the federal sex discrimination law cited both by transgender advocates and by those who favor restrictions on trans athletes in student sports.

Kotler-Berkowitz is among the 2 percent of U.S. high school students who identify as transgender, according to 2019 data from the Centers for Disease Control and Prevention. And he’s one of the estimated 26 percent of trans boys and girls ages 13 to 17 who play a sport, according to the Human Rights Campaign, which advocates on behalf of LGBTQ people.

None of the transgender athletes interviewed for this article wanted their specific town or school published out of privacy concerns. Kotler-Berkowitz lives in Massachusetts, which means his state’s laws protect his ability to play on boys sports teams, and he was able to start soccer without having to even inform his coach he is transgender.

Many transgender K-12 athletes can’t say they’ve had the same experience. Eighteen states have laws banning the ability of trans students—primarily transgender girls—to participate in sports consistent with their gender identity, according to the Movement Advancement Project, a think tank that tracks laws on equity issues.

The upcoming interpretation of Title IX could affect such efforts.

In June, the U.S. Department of Education released proposed rules that would clarify that sex discrimination applies to issues of gender identity and sexuality. But the department sidestepped any official interpretation of how the rule applies to sports. Instead, it plans to do a separate rulemaking process, exploring whether the law establishes a student’s right to participate in a sport that aligns with their gender identity.

The Education Department has not released any information on what the rulemaking process will entail or a timeline, although it will likely take more than a year. Meanwhile, athletes, parents, coaches, and advocates on all sides of the issue argue time is of the essence, growing impatient as they wait for federal action.

The National Women’s Law Center and Women’s Sports Foundation sent a letter to President Joe Biden on Aug. 11, urging his administration to “swiftly release a Title IX athletics rule that would ensure all students, including transgender, nonbinary, and intersex students, can participate fully and equally in school sports.” Forty-eight other organizations—including The Trevor Project, the National Planned Parenthood Foundation, and GLSEN, an LGBTQ rights organization dedicated to K-12 students—signed the letter.

One facet of a broader societal debate

The debate over sports is just one of the societal divisions surrounding young trans people, their rights, and schools’ responsibilities toward them. In the past two years, politicians in Texas and Florida have passed laws preventing teachers from talking about LGBTQ issues in the classroom, requiring schools to inform parents when students want to go by a name other than the one on their birth certificate, and preventing gender-affirming care for young trans people.

“This is a moment when trans youth, especially, need to see more than attacks, which have dominated so much of the discourse now,” said Sam Ames, director of advocacy and government affairs at the Trevor Project, a nonprofit that provides crisis support to young LGBTQ people. “They need to see their leaders have their backs, and they need to see it soon.”

Rights in limbo

The controversy centers on students like Ember, a transgender high school senior in Ohio who asked that her last name not be used out of concerns for her privacy. Before Ember could start playing girls softball during her sophomore year, she had to prove she was trans.

For Ember, now 18, that meant completing at least one year of hormone treatment related to her gender transition, or demonstrating that she does not possess physical or physiological advantages over cisgender female athletes of the same age group.

Ember chose to go the hormone route, which allowed her to play her sophomore year. But in her junior year, she was also required to receive a doctor’s note to confirm she didn’t have a physical advantage by providing information on her height and weight compared to cisgender female athletes her age.

Each year, Ember has to go through that process, which she describes as “anxiety-inducing” and “demeaning.”

“You’re having to prove your femininity,” Ember said. “I am having to prove that I am girl enough to play on a girl’s team. That in itself is just kind of painful.”

Despite the work she has done to prove she can be on the girls team, Ember’s ability to play softball is under threat.

The Ohio House of Representatives passed a bill June 1—only with Republican votes—that would effectively ban transgender girls from playing girls sports. Ohio House Bill 151, which was initially written as a bill to make changes to the state’s teacher residency program, included a last-minute amendment that prohibited sports organizations from allowing “individuals of the male sex to participate on athletic teams or athletic competitions designated only for participants of the female sex.”

Under the proposal, students would have to undergo a physical examination if they, or someone else in their community, decides to dispute their defined sex. That would involve receiving a doctor’s statement establishing their sex based on their “internal and external reproductive anatomy, the participant’s normal endogenously produced levels of testosterone, and an analysis of the participant’s genetic makeup.”

For Ember and her family, the bill feels like a personal attack. If Ember weren’t in her senior year the family would consider moving to another state, said her mother, Minna, who also asked that her last name not be used for privacy reasons.

“It’s heartbreaking and frustrating,” said Minna. “It’s hard not to take it personally because this is directed at my kid.”

The Ohio bill is one example of state lawmakers across the country labeling the inclusion of transgender children in sports unfair, often arguing that trans girls and women have an advantage over their cisgender opponents.

“Allowing biological males to compete against biological females is a discriminatory policy that turns back the clock over a half-century on advances we have made for women,” Ohio state Rep. Jena Powell, a Republican who sponsored the bill, said during a June 1 hearing.

Logistically, the debates and varying laws make it difficult to keep up, said Anthony Nicodemo, a boys basketball coach and athletic director at the Greenburgh-North Castle school district in Dobbs Ferry, N.Y.

Nicodemo doesn’t have to worry about restrictive laws in his state, but when students travel to other parts of the country, like nearby Connecticut, the rules are different. The lack of consistency is “really problematic,” he said.

“The perfect solution, if it were ever possible, would be to have guidelines that are the same,” he said. “Every state is operating under a completely different set of rules right now. It’s really creating chaos.”

For the transgender students at the heart of it all, the rhetoric, media attention, and near-constant news is emotionally draining at best and silencing at worst. In a survey conducted earlier this year by the Trevor Project, 83 percent of transgender and nonbinary youth said they have worried about trans and nonbinary people being denied the ability to play sports.

“We don’t want to have all of these attacks on us,” said Kotler-Berkowitz, the Massachusetts soccer player. “We just want to play like any other kid.”

Rebekah Bruesehoff, a 15-year-old transgender field hockey player, poses for a photo. Bruesehoff said field hockey has taught her perseverance and how to get back up when she falls.

The power of Title IX

Field hockey taught Rebekah Bruesehoff perseverance. The 15-year-old transgender high school sophomore in New Jersey started the sport when she was 10, and she credits it for helping her develop a “growth mindset.”

“One of the most important things that field hockey has taught me is how to fall and get back up again,” Rebekah said. “I’m definitely not the best person on my team. Learning from mistakes I may make during a game or just being with peers who are better than me, trying to keep up with them and learning from what they do, that’s been really valuable.”

Like Kotler-Berkowitz, Rebekah is living in a state that allows her to compete in girls sports. She transitioned at 8 years old, and so far her introduction to field hockey has been without major complications, even with moves to three different schools.

But Rebekah’s mother, Jamie Bruesehoff, still worries.

“Every time I’m standing on the sidelines at a game, I look around and I’m like, ‘Who’s going to be the one that decides this is a problem?’” said Jamie, who works for GenderCool, a national campaign to promote understanding of transgender and nonbinary people. “We’ve been really lucky that hasn’t happened but, as the political rhetoric gets more and more intense, you’re kind of just waiting for it to be a problem even though she’s protected by law.”

Jamie believes Title IX already protects her daughter’s right to play field hockey, and she’s not alone. The federal law has been referenced by advocates on both sides of the issue, who say it bolsters their argument.

“I would argue that Title IX already prohibits this type of discrimination,” said Shiwali Patel, a lawyer with the National Women’s Law Center. If the department were to add specific language protecting transgender students’ right to participate in sports, “it would clarify and make explicit that these types of bans are unlawful,” Patel said.

But the law has also been cited in state bills, including the Ohio bill, aiming to prevent trans youth participation in sports.

Louisiana State Sen. Beth Mizell cited Title IX in a state law she sponsored, titled Fairness in Women’s Sports Act. The law prohibits transgender women and girls from competing in female sports by clarifying that girls sports are for “biological females” and boys sports are for “biological males.”

“Here we are backing off of the basic premise [of Title IX] that athletics for biological women are a unique entity and need to be held in that regard,” Mizell said in an interview. “Now … we’re going to allow this to happen, which we know will diminish the competitions between biological female athletes.”

Mizell believes the Education Department should leave the question up to the states. If the department’s rulemaking ultimately threatens the legality of the Louisiana Fairness in Women’s Sports Act, Mizell expects the state government to fight that.

“To go into this area of conversation, that’s quite a leap,” Mizell said of the federal government’s involvement in the issue. “To do it without the support of many of the states, not only is it inappropriate but it’s disrespecting the opinion of the states across the country. I would hope they would take states’ thoughts into consideration before they do anything.”

Sivan Kotler-Berkowitz, 17, a transgender student-athlete, plays soccer with his brother, Lev, at a Massachusetts park on Sept. 3, 2022.

Time is of the essence

In the meantime, trans student athletes try to keep their focus and perspective.

Although the process she must go through to play softball is hard on her, Ember can’t imagine her life without the sport. Her team is her community, and she’s in love with the adrenaline that comes with playing as a catcher.

“Even though it causes stress and anxiety, without softball I would just be way more stressed and anxious over the entire school year,” she said. “It’s the ability to not think about life for a few hours.”

Ember, along with Rebekah and Kotler-Berkowitz, is keeping her eyes on the Education Department as it plans to draft new rules for trans youth participation in sports.

They’d like to see the department focus on listening to trans voices, and talking to doctors, athletic directors, and coaches as it develops proposals. Most of all, they’d like to see action, and they’d like to see it soon.

In the meantime, they plan to focus on advocacy in between classes, practice, and clubs. Last year, Ember participated in the #OhioCanPlay campaign with Equality Ohio, an LGBTQ rights organization based in Columbus, in which she and her mother shared their story. She regularly meets with lawmakers in her state to discuss the implications of restrictive laws.

Rebekah and Kotler-Berkowitz are both GenderCool Champions, which means they’ve shared their story to help dispel misconceptions about transgender people.

“We’re not scary, we’re not trying to disrupt other sports,” Kotler-Berkowitz said. “We’re really, really just trying to play like other kids.”

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