Transgender Athletes and Title IX

Happy Monday! The Memphis Zoo held a farewell party on Saturday for Ya Ya—the giant panda on loan from the Chinese Association of Zoological Gardens since 2003—before her expected departure later this month.

Forget the spy balloon. It’s only a matter of time before we learn Ya Ya was here on a reconnaissance mission, ordered to gather intel about Graceland and boost the CCP’s efforts to replicate our booming rock n’ roll industry.

Quick Hits: Today’s Top Stories

• The Bureau of Labor statistics reported Friday that U.S. employers added 236,000 jobs in March–down from February’s upwardly revised 326,000 jobs, but still slightly exceeding economists’ expectations. The unemployment rate ticked down slightly from 3.6 to 3.5 percent, and more people sought out work, with the labor force participation rate increasing from 62.5 percent in February to 62.6 percent in March. Average hourly earnings–a measure the Federal Reserve is watching closely in its fight against inflation–rose 0.3 percent month-over-month in March and 4.2 percent year-over-year. Those figures were 0.2 percent and 4.6 percent in February, respectively.
• The Justice Department has opened an investigation into leaks of U.S. military and intelligence documents, with reports surfacing on social media in recent weeks purporting to show the degree to which the American intelligence community has infiltrated Russia’s security services. The documents—which a senior U.S. official said “look real”—reveal both the Russian and Ukrainian militaries to be severely weakened, with the Ukrainian military facing “critical shortages” of air defense munitions. The Biden administration announced a new $2.6 billion security assistance package for Ukraine last week that included HIMARS ammunition and air defense interceptors, among other materiel.
• The U.S. military announced Saturday the USS Florida—a nuclear-powered submarine capable of carrying more than 150 Tomahawk cruise missiles—has moved into the Red Sea. The military rarely announces submarine movements publicly, and disclosing the relocation is likely intended to send a message to Iran in the wake of recent attacks by Iranian-backed groups on American bases in the Middle East that killed one U.S. contractor and injured a dozen other Americans.
• A drone strike in northern Iraq on Friday targeted a Syrian Kurdish leader, Gen. Mazloum Abdi, whose Syrian Democratic Forces have been a key U.S. ally in the fight against ISIS. The general was traveling in a convoy that also included U.S. military personnel, but a spokesperson for U.S. Central Command said there were no casualties. The origin of the attack is unknown, but some observers suspect Turkey, a longtime opponent of Kurdish forces in Syria.
• Hours after Taiwanese President Tsai Ing-wen returned home from California—where she met with a bipartisan delegation of U.S. lawmakers, including House Speaker Kevin McCarthy—the Chinese Communist Party announced plans to conduct live-fire military exercises in the Taiwan Strait. The drills, which began over the weekend, have thus far involved dozens of Chinese aircraft and at least 11 ships. The U.S. Seventh Fleet, meanwhile, announced this morning a ​​Navy destroyer had sailed through the South China Sea in a manner “consistent with international law.” The head of Taiwan’s legislature said he still expects McCarthy to visit Taipei, a move that could inflame tensions with China even further.
• At least 44 people were killed in Burkina Faso on Thursday in two suspected terrorist attacks targeting villages near the country’s border with Niger. No group has claimed responsibility for the attacks, but the Islamic State and al-Qaeda are known to operate in the afflicted Sahel region, and local officials blamed “armed terror groups” for the killings.
• Two federal court decisions on Friday reached conflicting conclusions regarding the abortion drug mifepristone. Judge Matthew Kacsmaryk, a Trump-appointed judge for the Northern District of Texas, issued a hold on the Food and Drug Administration’s (FDA) 2000 approval of the drug, while in a separate case, Judge Thomas Rice, an Obama-appointed judge for the Eastern District of Washington, barred the FDA from rescinding its approval. Attorney General Merrick Garland said on Friday the Justice Department will appeal the Texas decision and asked the Fifth Circuit Court of Appeals for a stay pending appeal.
• Supreme Court Justice Clarence Thomas responded Friday to a ProPublica report detailing undisclosed luxury trips he has taken over several decades sponsored by real estate magnate and Republican donor Harlan Crow. “Early in my tenure at the Court, I sought guidance from my colleagues and others in the judiciary, and was advised that this sort of personal hospitality from close personal friends, who did not have business before the Court, was not reportable,” Thomas said in a statement. The Judicial Conference—the body responsible for setting ethics codes for federal courts—clarified its rules guidance last month to make clear personal hospitality (including trips paid for by friends) are subject to disclosure requirements. Thomas said that in compliance with the updated guidance, he would disclose any future personal hospitality. (Disclaimer: Harlan Crow is a minority investor in The Dispatch and a friend of the founders.)
• Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell issued a bipartisan call for Russia to release Wall Street Journal reporter Evan Gershkovich on Friday, as Russian state media reported he was formally charged with espionage. The leaders’ statement also demanded the Kremlin release former U.S. Marine Paul Whelan, who has been held in Russia since 2018 and is serving a 16-year prison sentence for espionage, a charge he—like Gershkovich—denies. 
• Spanish golfer Jon Rahm shot a three-under 69 on Sunday to secure a come-from-behind Masters win, defeating Phil Mickelson and Brooks Koepka, who tied for second place. With the victory, Rahm—who also won the U.S. Open in 2021—reclaimed his status as the top-ranked golfer in the world.

Fielding Transgender Student Athletes

The Biden administration has proposed a new rule governing how schools handle transgender students’ participation in athletics—forbidding blanket bans, but allowing more tailored restrictions—and approximately no one is happy about it.

“I can’t read this any other way than a betrayal,” tweeted trans activist and researcher Erin Reed. Sasha Buchert, a senior attorney at the pro-LGBTQ advocacy organization Lambda Legal, said the group was “concerned about whether the proposed rule can properly eliminate the discrimination that transgender students experience.” Meanwhile, Christiana Kiefer, senior counsel for the Christian advocacy group Alliance Defending Freedom, labeled the proposed regulation a “slap in the face to female athletes.”

The rule—which will undergo 30 days of public comment after publication in the Federal Register—may change before it takes effect. But as currently written, it forbids blanket bans on transgender students’ involvement with sports teams that match their gender identities while allowing schools to write policies restricting participation for reasons of fairness or safety. The regulation was released on the same day the Supreme Court declined West Virginia’s request to enforce a blanket ban of its own while the law works its way through the court system.

The Biden administration’s proposed rule is just the latest in a string of new policies and political messaging focused on a relatively small slice of the nation’s students. About 1.4 percent of 13- to 17-year-olds—300,000 people—in the United States identify as transgender, per a 2022 study from the Williams Institute at UCLA, and the proportion of transgender athletes is smaller still. According to a 2017 survey conducted by the Human Rights Campaign and University of Connecticut, about 15 percent of transgender youth reported playing on a sports team.

Yet these athletes have received an enormous amount of attention in recent years—and in some cases notched controversial victories. College swimmer Lia Thomas, for example, won the women’s 500-yard freestyle in March 2022, becoming the first openly transgender athlete to secure an NCAA Division I national championship. Competing against men during the 2018-2019 season, Thomas ranked 65th in the event.

Thomas’ success—and the success of other transgender athletes—has sparked protests from biological females concerned that the participation of transgender athletes places them at an inherent disadvantage. “We’re dealing with something that’s completely out of our control when we’re racing biological males,” Riley Gaines—a former University of Kentucky swimmer who competed against Thomas—said last year. “Whether they have different lung capacities, their height, testosterone levels, whether they’ve used testosterone blockers or not—it doesn’t suppress going through puberty as a male.” Gaines spoke on this topic at San Francisco State University last week, but was disrupted by activists and allegedly struck multiple times by one of them. San Francisco police were ultimately required to escort Gaines to safety.

Clearly, the debate strikes a nerve with people across the political spectrum. Democrats are more likely than Republicans to approve of transgender athletes competing on their preferred teams, but a recent NPR/Ipsos poll suggested nearly two in three Americans oppose allowing transgender people who identify as women to compete on women’s and girls’ teams.

Perhaps unsurprisingly given these trends, global athletic governing bodies have begun to tighten rules on transgender athletes. World Athletics—which oversees track and field and other running sports—announced last month transgender athletes who have gone through what it labeled “male puberty” cannot participate in female world rankings competitions. “Decisions are always difficult when they involve conflicting needs and rights between different groups,” World Athletics president Sebastian Coe said in a statement, “but we continue to take the view that we must maintain fairness for female athletes above all other considerations.”

The Biden administration has also based its new rule on a statute designed to ensure fair access for female athletes—Title IX, which requires equal athletic opportunity for women and girls in schools that receive government funding. Last year, the administration proposed rules that will, once finalized, expand the statute’s definition of “sex” to include “stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”

Building on that expansion, the new rule declares that categorical bans on transgender students’ participation on teams matching their gender identities violate Title IX. But schools would still be able to create more tailored policies, the rule states, to “serve important educational objectives” like ensuring fairness or safety. “These criteria could not be premised on disapproval of transgender students or a desire to harm a particular student,” the Department of Education said in a statement. “The criteria also would have to minimize harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”

Under the rule, schools will factor age, type of sport, and competitiveness into their policies. “There are so many situations where it just doesn’t make any sense to limit transgender athletes,” said Nancy Hogshead-Makar, an Olympic gold medalist and head of Champion Women, which advocates for gender equality in sports. “Especially with really young kids—they’re not really involved in truly competitive sport. They’re just playing out there.” So while elementary-age transgender students would likely be free to participate on whichever T-ball team they prefer, schools might limit college-age transgender athletes who identify as women from competing on a women’s wrestling team, declaring the biological differences provide an unfair advantage or safety hazard in a more competitive environment. Hogshead-Makar also noted the new rule is flexible—schools don’t have to develop policies limiting transgender students’ participation.

A senior Education Department official told reporters the administration would proactively enforce its interpretation of Title IX once finalized, which could pose a problem for the 20 states with bans on the books. Some Republican-led states will certainly fight back. “Good luck—this won’t fly in Florida,” Manny Diaz Jr., Florida education commissioner, said in a statement responding to the draft rule. “We will never allow boys to play in girls’ sports. We will fight this overreach tooth and nail. And we will stop at nothing to uphold the protections afforded women under Title IX.”

Some states are already hashing out their bans in court—including West Virginia, where 12-year-old Becky Pepper-Jackson, a transgender student, has challenged the state’s law. Thursday, the Supreme Court denied West Virginia Attorney General Patrick Morrisey’s emergency request to fully implement its state law while the challenge plays out—Pepper-Jackson will be able to continue participating in girls’ divisions of cross country and track—but didn’t rule on the merits of the case or provide an explanation for the decision. Justices Samuel Alito and Clarence Thomas dissented, with Alito previewing the judicial battles to come: “[This is] an important issue that this Court is likely to be required to address in the near future.”

Worth Your Time 

• In the New York Times, Esau McCaulley reflects on what the story of Judas—the disciple whose betrayal led to Jesus’ execution—can teach us about Easter. “The tragedy of Judas’s story is that his despair never let him go,” he writes. “The gospel accounts tell us that after betraying Jesus, he killed himself. I do not know many people who have committed suicide, but lots of people from my neighborhood quit on life. Convinced by our shared traumas that their story was over, they let drugs or the streets take them. In the gospel stories, Jesus overflows with forgiveness. On the cross, one of the last things he said was a plea that God forgive those who crucified him. After the resurrection, he forgives Peter and the other disciples. The only better story of redemption I can imagine would have been the reconciliation of Judas the Betrayer and Jesus. I am confident Jesus would have forgiven Judas. That indestructibility of hope might be the central and most radical claim of Easter—that three days after Jesus was killed, he returned to his disciples physically and that made all the difference.”
• Ben Ferencz, the last surviving Nuremberg war crimes prosecutor, died over the weekend at the age of 103. “Ferencz was a 27-year-old lawyer with no courtroom experience when he prosecuted what would be called the largest murder case in history,” Emily Langer writes in his Washington Post obituary. “Standing 5-foot-2, he nearly disappeared behind the lectern in the packed courtroom in Nuremberg, Germany, in 1947. Mr. Ferencz, a Transylvanian-born Jew who had arrived in the United States as an infant, presented to a U.S. tribunal the massive case against 22 authorities of the mobile Nazi killing units, called Einsatzgruppen, that operated in Eastern Europe during World War II. All 22 defendants were convicted. Four were executed. If not for Mr. Ferencz, a former Army investigator who personally tallied the million deaths using sequestered German war documents and brought the case to his superiors, the men might never have been tried. He was ‘the lawyer for humanity,’ said John Q. Barrett, a professor of law at St. John’s University in New York City and a scholar of the Nuremberg trials. ‘The scale of the atrocities, the pure innocence of the victims … was at the heart of the exterminationist evil of Nazism.’”

Presented Without Comment

Also Presented Without Comment

Toeing the Company Line

• In the newsletters: Haley reports on (🔒) Congress’ reaction to the ProPublica investigation of Clarence Thomas’ previously undisclosed gifts, Chris discusses the importance (🔒) of primary elections, Nick tells the tale (🔒) of the “Tennessee Three,” and Jonah argues the (Republican) kids are not alright. “Everywhere I look these days, I see young conservatives believing they should behave like jerks,” he writes. “Surrounding yourself with people who think it’s a sign of courage and strength to be coarse or bigoted is how you become coarse and bigoted.”
• On the podcasts: Drucker is joined by The Messenger’s Marc Caputo to discuss their reporting on Florida Gov. Ron DeSantis, and Jonah dives into the expulsion of legislators from the Tennessee House of Representatives and other sundry stupidity. 
• On the site over the weekend: Patrick Frey (aka Patterico) presented a modest defense of Alvin Bragg’s Trump indictment, Alec praised Apple TV’s Tetris, and Peter C. Meilaender reviewed both the National Book Award Winner and the book he thinks should have won. 
• On the site today: Oliver Rhodes reports on European Union efforts to boost semiconductor production and Chris ponders whether DeSantis has “bad case of Ted Cruz-itis: Overfunded and underwhelming.”

Let Us Know

Do you think the Biden administration’s proposed rule strikes the correct balance on transgender athletes’ participation in certain sports, or do you think the blanket bans being pushed by many Republican-led states are a better approach? Why do you think this issue engenders such spirited debate?