Why Michigan SB 218 Should be Voted Down

Trans youth, like all youth, simply want to participate in the activities they love, including athletics. They want to play sports for the same reasons other young people do: to challenge themselves, improve fitness, and be part of a team. Sadly, by imposing a wholesale ban on trans students participating in high school interscholastic athletics consistent with their gender identity, Michigan Senate Bill 218 would discriminate based on transgender status and sex, violating the United States Constitution and Title IX of the Civil Rights Act.   

If it becomes law, this bill would needlessly and illegally deprive some students of the opportunities available to their peers, sending a dangerous message to vulnerable transgender youth that they are not welcome or accepted in their communities.  

One of the glaring problems with SB 218 is that it is based on the badly flawed premise that excluding transgender girls from sports benefits non-transgender girls and women.  In reality, transgender people of all ages have been participating in sports consistent with their gender at all levels for years, including at the Olympics since at least since 2004 and in the NCAA since at least 2011. With close to 20 years of clear policies for inclusion of people who are transgender in women’s events at the highest level of sport around the world, there has been absolutely no categorical dominance by transgender girls and women anywhere. Despite being eligible, no transgender female athlete has ever qualified for, let alone medaled in, a women’s event at the Olympics.  

Athletic success is based on many factors that vary from sport to sport. Trans athletes, like other athletes, do not have a single body type; there is absolutely no merit to the claim that women and girls who are transgender automatically have advantages in sports. In fact, particularly when referring to young people, many trans athletes have physiological characteristics that are typical of peers with their gender identity and not their assigned sex. This means that a girl who is transgender may have more physiological characteristics typical of non-transgender girls than non-transgender boys. Thus, any data purporting to compare the relative athletic abilities typical of non-transgender girls and non-transgender boys simply do not apply to most transgender youth.  

Unlawful Discrimination Against Trans Youth 

The standard set by the U.S. Supreme Court is clear: Parties who seek to defend gender-based and trans status-based government action must demonstrate an “‘exceedingly persuasive justification’ for that action.”  

Under this standard, the high court has determined that “the burden of justification is demanding and it rests entirely on the State.” However, the Michigan Senate has so far has offered no justification for SB 218 except for hypothetical future problems that have not arisen. But under heightened scrutiny that the court has applied, justifications “must be genuine, not hypothesized or invented post hoc in response to litigation.”  

This demanding standard leaves no room for a state to hypothesize harm and impose a categorical exclusion far exceeding anything utilized even at the most elite levels of competition. Applying this standard in Hecox v. Little, the Supreme Court struck down an Idaho law banning women and girls from participating in women’s sports solely because they are transgender, finding the state’s proffered justifications wholly insufficient. 

Likewise, if passed, SB 218 would violate Title IX of the Civil Rights Act of 1964. Title IX protects all students—including students who are transgender—from discrimination based on sex.  Title IX states that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” The overwhelming majority of courts that have considered the issue have held that discrimination against transgender students in schools is prohibited sex discrimination under Title IX. Since the Supreme Court’s decision in Bostock v. Clayton County, Georgia in 2020, two federal appeals courts have affirmed that Title IX’s prohibition on sex discrimination likewise prohibits discrimination against transgender students when accessing single-sex spaces and activities. 

Step in the Wrong Direction 

The Biden-Harris administration has made clear that it intends to enforce federal civil rights statutes, including Title IX, consistent with the Supreme Court’s holding in Bostock, which focused on discrimination against LGBTQ people. This means that, should Michigan pass SB 218 or bills like it that target transgender students for discrimination, the state will not only likely face litigation by private parties but also by the federal government. Such a violation of Title IX will not only cost the state substantially in litigation costs; it will also put the state’s federal education funding at risk.  

Simply put, SB 218 is far out-of-step with prevailing international and national norms of athletic competition, violates the United States Constitution and federal civil rights law, puts Michigan at risk of losing hundreds of millions of dollars in federal funding, and harms transgender youth -- all to solve a problem that does not exist. If you want to help girls’ sports, you don’t do it by attacking transgender youth, who deserve the chance to succeed and thrive like any other student.  

For all these reasons, SB 218 must be voted down. 

Trans student athletes belong on the sports team they identify with. Tell your representative to vote no on Senate Bill 218.