Why Donald Trump's ban on transgender athletes in girls' and women's sports may be difficult to enforce

In the latest among a string of executive actions aimed at transgender people, US President Donald Trump signed an executive order barring transgender athletes from participating in girls' and women's sports.

The order, titled ‘Keeping Men Out of Women's Sports’, came on the National Girls and Women in Sports Day. It instructs the Department of Justice to ensure that all federal agencies enforce the ban on transgender girls and women from participating in female school sports, abiding by Title IX—a law that prohibits sex-based discrimination in education. The Trump administration interprets sex as the gender someone was assigned at birth.

“The war on women's sports is over,” Trump said at a signing ceremony. The order authorises the Education Department to penalise schools that allow transgender athletes to compete, and could result in the schools losing the federal funding.

Though there is no federal statute, several Republican-led states have passed laws banning transgender girls from school sports. These laws have been legally challenged, and Trump’s new order is also certain to see similar lawsuits. The state bans have been challenged by transgender athletes on the grounds that they violate their right to equal protection under the US Constitution.

According to a 2020 US Supreme Court ruling, discriminating against transgender people is discrimination on the basis of sex, which is prohibited by Title VII, which bans employment discrimination. Title IX—a law that prohibits sex-based discrimination in education—and Title VII have often been interpreted similarly by courts. The 9th US Circuit Court of Appeals struck down Idaho's law against transgender athletes playing in the sex category matching their gender identity—Idaho was the first state to pass such a law.

Another major challenge will be to identify the transgender women and girls, as it will involve sex testing and “body policing”. The problem is evident from the fact that of the more than 20 Republican-led states that have passed laws banning transgender girls from school sports, only 12 detail a procedure to determine a student’s sex.

A student's sex can be verified by relying on their “genetic makeup, reproductive anatomy or naturally produced testosterone levels”. Testosterone testing is highly unreliable, Reuters quoted Cheryl Cooky, a professor at Purdue University, as saying, because of differences in how different bodies use the hormone. Also, similar tests do not necessarily show athletic performance, and hence, would be a fair indicator, she said.

President Trump, during the signing ceremony, added that his administration plans to urge the International Olympic Committee (IOC) to ensure that eligibility for participation in women's sporting events is determined by sex and not gender identity or testosterone reduction. The IOC has, so far, allowed the international federations for each sport to take a decision on transgender participation. However, with Thomas Bach set to retire and former track star Sebastian Coe seen as the next IOC chairman—Coe has long advocated limiting participation in female sports to cisgender women—things could change.