[House Report 118-35]
[From the U.S. Government Publishing Office]


118th Congress }                                               {  Report
                        HOUSE OF REPRESENTATIVES
 1st Session   }                                               {   118-35

======================================================================



 
          PROTECTION OF WOMEN AND GIRLS IN SPORTS ACT OF 2023

                                _______
                                

 April 10, 2023.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Ms. Foxx, from the Committee on Education and the Workforce, submitted 
                             the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 734]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and the Workforce, to whom was 
referred the bill (H.R. 734) to amend the Education Amendments 
of 1972 to provide that for purposes of determining compliance 
with title IX of such Act in athletics, sex shall be recognized 
based solely on a person's reproductive biology and genetics at 
birth, having considered the same, reports favorably thereon 
with an amendment and recommends that the bill as amended do 
pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Protection of Women and Girls in 
Sports Act of 2023''.

SEC. 2. AMENDMENT.

  Section 901 of the Education Amendments of 1972 (20 U.S.C. 1681) is 
amended by adding at the end the following:
  ``(d)(1) It shall be a violation of subsection (a) for a recipient of 
Federal financial assistance who operates, sponsors, or facilitates 
athletic programs or activities to permit a person whose sex is male to 
participate in an athletic program or activity that is designated for 
women or girls.
  ``(2) For the purposes of this subsection, sex shall be recognized 
based solely on a person's reproductive biology and genetics at birth.
  ``(3) Nothing in this subsection shall be construed to prohibit a 
recipient from permitting males to train or practice with an athletic 
program or activity that is designated for women or girls so long as no 
female is deprived of a roster spot on a team or sport, opportunity to 
participate in a practice or competition, scholarship, admission to an 
educational institution, or any other benefit that accompanies 
participating in the athletic program or activity.''.

                                Purpose

    Girls deserve equal opportunity to compete and achieve in 
sports. The Biden administration's reinterpretation of Title IX 
is a slap in the face to young women and girls, telling them 
their hard work, on-field achievements, and athletic futures do 
not matter. Title IX was designed to stop discrimination and 
ensure equal athletic opportunities for women. By allowing 
biological males to compete in girls' sports the Biden 
administration will be reversing 50 years of progress for 
women. H.R. 734, the Protection of Women and Girls in Sports 
Act of 2023 strengthens the law's existing protections for 
women, ensures a level playing field for female athletes, and 
protects the law from the Biden administration's radical 
regulatory scheme.

                            Committee Action


                             117TH CONGRESS

First Session--Hearings

    On June 23, 2021, the Committee on Education and the 
Workforce held a hearing on ``Examining the Policies and 
Priorities of the U.S. Department of Education.'' The purpose 
of the hearing was to review the Fiscal Year 2022 budget 
priorities of the U.S. Department of Education. Testifying 
before the Committee was The Honorable Miguel Cardona, 
Secretary, U.S. Department of Education, Washington, D.C., 
including on the topic of the Biden administration's 
interpretation of Title IX when biological males compete in 
women's and girls' sports.

Second Session--Hearings

    On May 26, 2022, the Committee on Education and the 
Workforce held a hearing on ``Examining the Policies and 
Priorities of the U.S. Department of Education.'' The purpose 
of the hearing was to review the Fiscal Year 2023 budget 
priorities of the U.S. Department of Education. Testifying 
before the Committee was The Honorable Miguel Cardona, 
Secretary, U.S. Department of Education, Washington, D.C. At 
this hearing, concerns regarding Title IX were raised, such as 
the rewriting of Title IX regulations by the Biden 
administration that would seek to undermine protections for 
girls and women when biological males participate in women's 
sports, the fairness for biological women participating in 
women's sports with biological males, and the administration's 
official view on biological males' participation in women's 
sports.

                             118TH CONGRESS

First Session--Hearings

    On February 8, 2023, the Committee on Education and the 
Workforce held a hearing on ``American Education in Crisis''. 
The purpose of the hearing was to examine the state of American 
education, including K-12 education, postsecondary education, 
and workforce development. Testifying before the Committee was 
Ms. Virginia Gentles, Director, Education Freedom Center, 
Independent Women's Forum, Arlington, VA; Dr. Monty Sullivan, 
President, Louisiana Community and Technical College System, 
Baton Rouge, LA; Mr. Scott Pulsipher, President, Western 
Governors University, Salt Lake City, UT; and Mr. Jared Polis, 
Governor, State of Colorado, Denver, CO. During this hearing, 
Ms. Gentles highlighted Title IX for women's sports, urging 
members to support H.R. 734, the Protection of Women and Girls 
in Sports Act, in her oral testimony.
    On March 9, 2023, the Education and the Workforce Committee 
voted to report two bills to help empower parents, students, 
and women: H.R. 734, the Protection of Women and Girls in 
Sports Act of 2023, and H.R. 5, the Parents Bill of Rights Act.

Legislative Action

    On February 1, 2023, Rep. Greg Steube (R-FL) introduced 
H.R. 734, Protection of Women and Girls in Sports Act of 2023 
with Reps. Foxx, Mariannette Miller-Meeks (R-IA), Claudia 
Tenney (R-NY), Robert Wittman (R-VA), Daniel Webster (R-FL), 
Troy Balderson (R-OH), Ken Buck (R-CO), Ann Wagner (R-MO), 
Buddy Carter (R-GA), Matt Gaetz (R-FL), Jason Smith (R-MO), 
Jake Ellzey (R-TX), Morgan Griffith (R-VA), Doug LaMalfa (R-
CA), Jerry Carl (R-AL) as original co-sponsors. The bill was 
referred solely to the Committee on Education and the 
Workforce. On March 8, 2023, the Committee considered H.R. 734 
in legislative session and reported it favorably, as amended, 
to the House of Representatives by a recorded vote of 25-17. 
The Committee adopted the following amendments to H.R. 734:
          1. Rep. Owens offered an Amendment in the Nature of a 
        Substitute (ANS) that makes a technical change and 
        amends section 901 of the Education Amendments of 1972 
        by adding at the end the following:

          shall be a violation of subsection for a recipient of 
        Federal financial assistance who operates, sponsors, or 
        facilitates athletic programs or activities to permit a 
        person whose sex is male to participate in an athletic 
        program or activity that is designated for women or 
        girls. For the purposes of this subsection, sex shall 
        be recognized based solely on a person's reproductive 
        biology and genetics at birth. Nothing in this 
        subsection shall be construed to prohibit a recipient 
        from permitting males to train or practice with an 
        athletic program or activity that is designated for 
        women or girls so long as no female is deprived of a 
        roster spot on a team or sport, opportunity to 
        participate in a practice or competition, scholarship, 
        admission to an educational institution, or any other 
        benefit that accompanies participating in the athletic 
        program or activity.

                            Committee Views


                              INTRODUCTION

    Title IX of the Education Amendments of 1972 (Title IX) 
prohibits any education program or activity receiving federal 
financial assistance from discriminating on the basis of sex. 
In practice, Title IX applies to most elementary and secondary 
schools (including private elementary and secondary schools 
participating in the school meals programs) and to public and 
private colleges and universities. H.R. 734, the Protection of 
Women and Girls in Sports Act of 2023, amends Title IX to 
prohibit recipients of federal financial assistance that 
operate, sponsor, or facilitate athletic programs or activities 
from permitting males to participate in any of those activities 
that are designated for females. The bill also amends Title IX 
to require ``sex,'' in the context of athletic activities, to 
be recognized based solely on a person's reproductive biology 
and genetics at birth. Finally, the bill clarifies that the 
bill's provisions do not prohibit schools or institutions from 
permitting males to practice against women's sports teams, 
protecting the long-standing practice of some women's athletic 
programs of practicing or scrimmaging against males. H.R. 734 
is important legislation that will protect equal athletic 
opportunities and ensure level playing fields for women and 
girls.

                   UNDERMINING ATHLETIC OPPORTUNITIES

    Since Title IX was enacted 50 years ago, female 
participation in sports has increased 1,057 percent at the high 
school level and 614 percent at the postsecondary level.\1\ 
Title IX was designed to combat discrimination against women, 
and it has worked.
---------------------------------------------------------------------------
    \1\Impact of Title IX on Women's Sports | Billie Jean King.
---------------------------------------------------------------------------

Biden Administration Actions

    Unfortunately, that progress is under threat today from the 
Biden administration, which is determined to roll back women's 
progress. Last year, the Department of Education (Department) 
issued a Notice of Proposed Rulemaking (NPRM) to redefine the 
term ``sex'' under Title IX.\2\ Later this year, the 
administration will finalize those regulations. In addition, 
the Department will soon release a separate NPRM specifically 
related to athletics.\3\
---------------------------------------------------------------------------
    \2\https://www.federalregister.gov/documents/2022/07/12/2022-13734/
nondiscrimination-on-the- basis-of-sex-in-education-programs-or-
activities-receiving-federal.
    \3\https://www.reginfo.gov/public/do/eoDetails?rrid=308363.
---------------------------------------------------------------------------
    These regulatory actions will likely undermine the gains 
made by women over the last five decades. In addition, the 
Department has taken enforcement and litigation actions that 
make its intentions clear. First, under the current 
administration, the Department dismissed the prior 
administration's pending enforcement action related to 
Connecticut's failure to require segregated sports teams based 
on biological sex.\4\ Second, the Department and the Department 
of Justice filed a Statement of Interest in B.P.J. v. West 
Virginia State Board of Education arguing that Title IX does 
not allow West Virginia to exclude biological males who 
identify as females from participating in female sports.\5\
---------------------------------------------------------------------------
    \4\OCR Case No. 01-19-4025, Conn. Interscholastic Athletic Conf. et 
al. (Aug. 31, 2020).
    \5\B.P.J. v. West Virginia State Board of Education, Statement of 
Interest, 454-475 (S.D. W.V. 2021), https://www.justice.gov/crt/case-
document/file/1405541/download.
---------------------------------------------------------------------------
    Committee Republicans believe the Department should reverse 
its interpretation of Title IX as expressed in the NPRM in 
full. However, if the Department insists on finalizing these 
policies that will undermine women's athletic opportunities, 
the Department has an obligation to be transparent in its 
intentions and to subject its policies to proper notice and 
comment.

Impact on Women and Girls in Sports

    The Department's subterfuge on this issue is not harmless. 
Currently, only 19 states have policies in place to protect the 
integrity of women's athletic competitions, and even those are 
under threat from the Department's regulatory action.\6\ 
Allowing men to compete in women's athletic activities 
undermines the progress made by women and girls since Title 
IX's enactment and uses a groundbreaking antidiscrimination 
statute to discriminate against the very people it was designed 
to protect.
---------------------------------------------------------------------------
    \6\ https://www.lgbtmap.org/equality-maps/
sports_participation_bans.
---------------------------------------------------------------------------
    Female athletes have spoken out against the damage being 
done. Olympic swimmer Reka Gyorgy missed out on the opportunity 
to compete in the collegiate women's 500-yard freestyle 
swimming final last March due to the presence of a biological 
male in the competition. She urged the National Collegiate 
Athletic Association (NCAA) to implement rules to protect the 
integrity of women's sports.\7\ Similarly, college track and 
field athlete Linnea Saltz has called out athletics 
administrators for depriving women of competitive honors, 
scholarships, and the opportunities that come with those 
achievements.\8\
---------------------------------------------------------------------------
    \7\https://www.swimmingworldmagazine.com/news/reka-gyorgy-virginia-
tech-swimmer-bumped-out-of-b-final-in-500-free-writes-critical-letter-
to-ncaa/.
    \8\https://www.foxnews.com/opinion/ncaa-girls-women-compete-level-
playing-field-linnea-saltz.
---------------------------------------------------------------------------
    Unfortunately, the pleas of these athletes and other female 
athletes have gone unheeded by the NCAA and other governing 
bodies. The NCAA's current policies assume that testosterone 
suppression will level the playing field for female athletes, 
but this assumption is not backed by science. Dr. Michael 
Joyner, a physiologist with the Mayo Clinic, stated, ``There 
are social aspects to sport, but physiology and biology 
underpin it. Testosterone is the 800-pound gorilla.''\9\ 
Another physiologist, Dr. Ross Tucker, has also said that 
testosterone reductions do not reverse the physical advantages 
biological males have in athletic competitions.\10\
---------------------------------------------------------------------------
    \9\https://www.dailymail.co.uk/news/article-10868453/Mayo-Clinic-
doctor-confirms-trans-
swimmer-Lia-Thomas-given-unfair-advantage.html.
    \10\Id.
---------------------------------------------------------------------------
    Concern about athletic opportunities for women in sports 
should not be a partisan issue. Most Americans understand the 
threat to women's sports posed by the Biden administration's 
actions and the radical ideologies underlying them. A 
Washington Post-University of Maryland poll conducted last year 
found that only three in 10 Americans believed biological males 
should be allowed to compete in women's sports.\11\
---------------------------------------------------------------------------
    \11\https://www.washingtonpost.com/dc-md-va/2022/06/13/washington-
post-umd-poll-most-
americans-oppose-transgender-athletes-female-sports/.
---------------------------------------------------------------------------
    In addition, last year, the International Swimming 
Federation (FINA) approved a new policy to restrict most 
transgender athletes from competing in sanctioned events, with 
71.5 percent of the international body's member federations 
approving of the policy.\12\ The FINA president stated, ``We 
have to protect the rights of our athletes to compete, but we 
also have to protect competitive fairness at our events, 
especially the women's category at FINA competitions.'' The 
international governing body for track and field recently took 
similar steps.\13\ And yet, Democrats in Congress and the Biden 
administration are determined to ignore the emerging 
international consensus and the science in order to advance 
discriminatory policies against women.
---------------------------------------------------------------------------
    \12\https://www.cnn.com/2022/06/19/us/fina-vote-transgender-
athletes#::text=The%20new%20
gender%20inclusion%20policy,on%20the%20puberty%20Tanner%20Scale.
    \13\https://www.nbcnews.com/nbc-out/out-news/track-governing-body-
bans-transgender-
women-athletes-rcna76432.
---------------------------------------------------------------------------

         H.R. 734, THE PROTECTION OF WOMEN AND GIRLS IN SPORTS 
                              ACT OF 2023

    The Committee on Education and the Workforce is advancing 
this legislation to protect Title IX and the integrity of 
women's athletics. Women fought long and hard for equal 
athletic opportunity. Unfortunately, girls are losing trophies, 
podium spots, public recognition, opportunities to compete, and 
scholarship opportunities as incidents of males dominating 
girls' athletic competitions when competing as females are 
increasing nationwide. Women and girls deserve the opportunity 
to comfortably experience the camaraderie of being part of a 
team, but allowing males to compete with girls disrupts the 
healthy competition and teamwork that allow teams to thrive.
    Ignoring the biological differences between men and women 
is a catastrophe for women. It destroys a level playing field 
and makes women second class citizens in their own sports. This 
bill clarifies that protecting women from discrimination under 
Title IX means recognizing the term ``sex'' consistently with 
Congress's intent. The bill further clarifies that forcing 
females to compete against males violates Title IX's 
prohibition against sex discrimination. This bill should not be 
necessary. This was settled law for nearly 50 years. Yet now, 
fairness and women's equal access to athletic opportunities are 
again threatened, and Committee Republicans are committed to 
reestablishing the protections guaranteed under Title IX.

                               CONCLUSION

    To protect women's and girls' opportunity to compete 
athletically, H.R. 734, the Protection of Women and Girls in 
Sports Act of 2023, strengthens Title IX's existing protections 
for women and ensures a level playing field for female 
athletes. Over the last 50 years, Title IX has paved the way 
for tremendous strides in access to education, scholarships, 
athletics, and more for millions of students across the 
country. The intent of Title IX, an education free from sex 
discrimination, remains as clear now as it was when it was 
first signed into law. However, the Biden administration's 
proposed regulations and the radical left's broader agenda are 
undermining athletic opportunities for women. This legislation 
is absolutely essential for restoring and upholding the intent 
of Title IX. Our women and girls deserve nothing less.

                                Summary


                  H.R. 734 SECTION-BY-SECTION SUMMARY

Section 1. Short title

     This Act may be cited as the ``Protection of Women 
and Girls in Sports Act of 2023''.

Section 2. Amendment

     A substitute amendment that makes one technical 
change:
         Adds a violation for a federal recipient 
        of federal financial assistance to operate, sponsor, or 
        facilitate athletic programs that permit a male to 
        participate in such programs that are designated for 
        women or girls.
         Adds that sex in the subsection is 
        recognized solely on a person's reproductive biology at 
        birth.
         Adds that the section does not prohibit 
        males from participating in training with a women-
        designated program as long as a female is not deprived 
        of a team roster spot.

                       Explanation of Amendments

    The amendments, including the amendment in the nature of a 
substitute, are explained in the body of this report.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch. H.R. 734 takes important steps to protect girls and 
women in athletic programs that are designated for girls or 
women.

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. This issue is addressed in the CBO letter.

                           Earmark Statement

    H.R. 734 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of House rule XXI.

                            Roll Call Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee Report to include for 
each record vote on a motion to report the measure or matter 
and on any amendments offered to the measure or matter the 
total number of votes for and against and the names of the 
Members voting for and against.


         Statement of General Performance Goals and Objectives

    In accordance with clause (3)(c) of House rule XIII, the 
goal of H.R. 734 is to protect athletic opportunities for girls 
and women.

                    Duplication of Federal Programs

    No provision of H.R. 734 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the committee's oversight findings and recommendations are 
reflected in the body of this report.

            Required Committee Hearing and Related Hearings

    In compliance with clause 3(c)(6) of rule XIII the 
following hearing held during the 118th Congress was used to 
develop or consider H.R. 734: ``American Education in Crisis''.
    The following related hearings were held: ``Examining the 
Policies and Priorities of the U.S. Department of Education 
(2021)'' and ``Examining the Policies and Priorities of the 
U.S. Department of Education'' (2022).

               New Budget Authority and CBO Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the committee has received 
the following estimate for H.R. 734 from the Director of the 
Congressional Budget Office:




    H.R. 734 would amend Title IX of the Education Amendments 
of 1972, which prohibits discrimination based on sex in 
education programs or activities that receive federal financial 
assistance. As a condition of federal funding, H.R. 734 would 
require such institutions to prohibit a person whose biological 
sex at birth was male from participating in an athletic program 
or activity that is designated for women or girls, unless such 
participation does not deny a female of an opportunity or 
benefit to participate.
    Title IX applies to local education agencies, elementary 
and secondary schools, post-secondary institutions, libraries, 
and other educational institutions that receive federal funds. 
The primary means of enforcing compliance with Title IX is 
through voluntary agreements between institutions and the 
enforcing agency, and termination of federal funds is a last 
resort.
    Spending subject to appropriation: Enacting H.R. 734 could 
result in a decrease in estimated authorizations for programs 
administered by several agencies, including the Department of 
Education. This would result from institutions failing to 
comply with, or choosing to forgo federal funding by not 
complying with, the requirements in the bill. CBO has no basis 
to estimate whether or how many institutions would do so. CBO 
estimates that, on average, K-12 schools receive $275,000 each 
year in federal funds from programs under title I of the 
Elementary and Secondary Education Act.
    Direct spending: The requirement set forth in H.R. 734 also 
would apply to federal student aid at postsecondary 
institutions and funding for child nutrition programs at K-12 
schools.
    Students who enroll in programs at institutions of higher 
education that meet certain criteria may receive federal 
student aid in the form of Pell grants or student loans that 
can be used to cover expenses at such eligible institutions. 
According to data from the office of Federal Student Aid, in 
year 2021-2022, higher education institutions received $108 
billion in federal grant and loans, including Pell grants and 
federal direct student loans. (About 20 percent of that total 
was provided for Pell grants in the annual appropriation act 
and is thus classified as discretionary spending.)
    Under the National School Lunch Program (NSLP), the School 
Breakfast Program (SBP), the Child and Adult Care Food Program, 
the Summer Food Service Program, and the Special Milk Program, 
the government provides commodities and cash payments to 
reimburse participating schools and institutions for at least 
part of the cost of each meal served. CBO estimates that the 
average school that participates in the NSLP and SBP will 
receive about $121,800 in 2024 under those programs.
    Enacting H.R. 734 could result in a reduction in direct 
spending through a similar mechanism as spending subject to 
appropriations, but CBO has no basis to predict whether, or how 
many, K-12 schools and postsecondary institutions would not 
comply with the requirement. As a result, CBO cannot estimate 
the savings related to schools not complying with that 
requirement.
    The CBO staff contact for this estimate is Garrett 
Quenneville. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Director of Budget Analysis.

                        Committee Cost Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 734. However, 
clause 3(d)(2)(B) of that rule provides that this requirement 
does not apply when, as with the present report, the committee 
has included in its report a timely submitted cost estimate of 
the bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                      EDUCATION AMENDMENTS OF 1972




           *       *       *       *       *       *       *
              TITLE IX--PROHIBITION OF SEX DISCRIMINATION


                     sex discrimination prohibited

  Sec. 901. (a) No 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, except that:
          (1) in regard to admissions to educational 
        institutions, this section shall apply only to 
        institutions of vocational education, professional 
        education, and graduate higher education, and to public 
        institutions of undergraduate higher education;
          (2) in regard to admissions to educational 
        institutions, this section shall not apply (A) for one 
        year from the date of enactment of this Act, nor for 
        six years after such date in the case of an educational 
        institution which has begun the process of changing 
        from being an institution which admits only students of 
        one sex to being an institution which admits students 
        of both sexes, but only if it is carrying out a plan 
        for such a change which is approved by the Commissioner 
        of Education or (B) for seven years from the date an 
        educational institution begins the process of changing 
        from being an institution which admits only students of 
        only one sex to being an institution which admits 
        students of both sexes, but only if it is carrying out 
        a plan for such a change which is approved by the 
        Commissioner of Education, whichever is the later;
          (3) this section shall not apply to an educational 
        institution which is controlled by a religious 
        organization if the application of this subsection 
        would not be consistent with religious tenets of such 
        organization;
          (4) this section shall not apply to an educational 
        institution whose primary purpose is the training of 
        individuals for the military services of the United 
        States, or the merchant marine;
          (5) in regard to admissions this section shall not 
        apply to any public institution of undergraduate higher 
        education which is an institution that traditionally 
        and continually from its establishment has had a policy 
        of admitting only students of one sex;
          (6) this section shall not apply to membership 
        practices--
                  (A) of a social fraternity or social sorority 
                which is exempt from taxation under section 
                501(a) of the Internal Revenue Code of 1954, 
                the active membership of which consists 
                primarily of students in attendance at an 
                institution of higher education, or
                  (B) of the Young Men's Christian Association, 
                Young Women's Christian Association, Girl 
                Scouts, Boy Scouts, Camp Fire Girls, and 
                voluntary youth service organizations which are 
                so exempt, the membership of which has 
                traditionally been limited to persons of one 
                sex and principally to persons of less than 
                nineteen years of age;
          (7) this section shall not apply to--
                  (A) any program or activity of the American 
                Legion undertaken in connection with the 
                organization or operation of any Boys State 
                conference, Boys Nation conference, Girls State 
                conference, or Girls Nation conference; or
                  (B) any program or activity of any secondary 
                school or educational institution specifically 
                for--
                          (i) the promotion of any Boys State 
                        conference, Boys Nation conference, 
                        Girls State conference, or Girls Nation 
                        conference, or
                          (ii) the selection of students to 
                        attend any such conference;
          (8) this section shall not preclude father-son or 
        mother-daughter activities at an educational 
        institution, but if such activities are provided for 
        students of one sex, opportunities for reasonably 
        comparable activities shall be provided for students of 
        the other sex; and
          (9) this section shall not apply with respect to any 
        scholarship or other financial assistance awarded by an 
        institution of higher education to any individual 
        because such individual has received such award in any 
        pageant in which the attainment of such award is based 
        upon a combination of factors related to the personal 
        appearance, poise, and talent of such individual and in 
        which participation is limited to individuals of one 
        sex only, so long as such pageant is in compliance with 
        other nondiscrimination provisions of Federal law.
  (b) Nothing contained in subsection (a) of this section shall 
be interpreted to require any educational institution to grant 
preferential or disparate treatment to the members of one sex 
on account of an imbalance which may exist with respect to the 
total number or percentage of persons of that sex participating 
in or receiving the benefits of any federally supported program 
or activity, in comparison with the total number or percentage 
of persons of that sex in any community, State, section, or 
other area: Provided, That this subsection shall not be 
construed to prevent the consideration in any hearing or 
proceeding under this title of statistical evidence tending to 
show that such an imbalance exists with respect to the 
participation in, or receipt of the benefits of, any such 
program or activity by the members of one sex.
  (c) For purposes of this title an educational institution 
means any public or private preschool, elementary, or secondary 
school, or any institution of vocational, professional, or 
higher education, except that in the case of an educational 
institution composed of more than one school, college, or 
department which are administratively separate units, such term 
means each such school, college, or department.
  (d)(1) It shall be a violation of subsection (a) for a 
recipient of Federal financial assistance who operates, 
sponsors, or facilitates athletic programs or activities to 
permit a person whose sex is male to participate in an athletic 
program or activity that is designated for women or girls.
  (2) For the purposes of this subsection, sex shall be 
recognized based solely on a person's reproductive biology and 
genetics at birth.
  (3) Nothing in this subsection shall be construed to prohibit 
a recipient from permitting males to train or practice with an 
athletic program or activity that is designated for women or 
girls so long as no female is deprived of a roster spot on a 
team or sport, opportunity to participate in a practice or 
competition, scholarship, admission to an educational 
institution, or any other benefit that accompanies 
participating in the athletic program or activity.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

                              Introduction

    Title IX of the Education Amendments of 1972 (Title IX) 
states in part, ``[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 . . .''\1\ The question as to whether ``sex'' in the 
context of Title IX includes sexual orientation and/or gender 
identity has been the subject of court cases, federal 
legislation, and administrative regulation. In 2020, the 
Supreme Court held in Bostock v. Clayton County that under a 
plain language interpretation of Title VII of the Civil Rights 
Act of 1964 (Title VII) discrimination based on an employee's 
sexual orientation or gender identity is indeed discrimination 
based on sex.\2\ This holding has since been applied to Title 
IX, which has been recognized to prevent discrimination on the 
basis of sexual orientation or gender identity.\3\ Courts 
across the country have held that Title IX requires schools to 
treat transgender students consistent with their gender 
identity.\4\
---------------------------------------------------------------------------
    \1\20 U.S.C. Sec. 1681.
    \2\Bostock v. Clayton County, 570 U.S. ___, 140 S. Ct. 1731 (2020).
    \3\E.g., Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586, 616 (4th 
Cir. 2020) (``After the Supreme Court's recent decision in Bostock v. 
Clayton County, we have little difficulty holding that a bathroom 
policy precluding Grimm from using the boys restrooms discriminated 
against him `on the basis of sex.' Although Bostock interprets Title 
VII of the Civil Rights Act of 1964, it guides our evaluation of claims 
under Title IX.'' (citations omitted)).
    \4\See Jamie Schultz, Title IX at 50: A Critical Celebration, 30 
Women in Sport & Physical Activity J., 97, 101-02 (2022).
---------------------------------------------------------------------------
    H.R. 734, the Protection of Women and Girls in Sports Act 
of 2023 would undo the holding of Bostock as it relates to 
women's athletics in education programs or activities that 
receive federal assistance. H.R. 734 weaponizes a landmark 
civil rights law against transgender youth, a critically 
marginalized population that federal courts have recognized 
should be protected under the law, not discriminated against 
with it.

                       Title IX and Equal Rights

    The Bostock decision had immediate repercussions for Title 
IX. Although distinct statutes, federal courts have recognized 
that Title VII jurisprudence informs Title IX.\5\ As such, 
multiple Federal Courts of Appeal have post-Bostock held that 
discrimination ``on the basis of sex'' as defined by Title IX 
also includes discrimination based on sexual orientation or 
gender identity.\6\ The Departments of Justice and Education 
have both issued similar determinations.\7\ When the Department 
of Education (Department) issued a Notice of Proposed 
Rulemaking (NPRM) on Title IX in 2022, it incorporated the 
Bostock holding throughout the proposed rule, including in the 
definitions of sex discrimination and sex based harassment.\8\ 
It is worth noting the 2022 Title IX NPRM purposefully did not 
address the participation of transgender students in athletics, 
with the Department announcing it would issue a proposed rule 
specifically on that subject sometime in the first half of 
2023.\9\ Instead of waiting for the issuance of that rule, 
which the Department acknowledged would recognize the ``unique 
circumstances of particular sports''\10\ but in a manner 
consistent with Bostock, Committee Republicans marked up H.R. 
734, a bill designed to circumvent Bostock altogether as it 
pertains to transgender student participation in sports. The 
Department has since announced a draft rule\11\ that would, in 
direct contrast to H.R. 734 but consistent with the law, 
``establish that policies violate Title IX when they 
categorically ban transgender students from participating on 
sports teams consistent with their gender identity just because 
of who they are.''\12\ Additionally, the draft rule notes that 
``there are some instances, particularly in competitive high 
school and college athletic environments, some schools may 
adopt policies that limit transgender students' 
participation.''\13\ However, the proposed rule is clear that 
the adoption of such policies must still ``protect[] students 
from being denied equal athletic opportunity'' but provides 
schools with the ability to create their own participation 
policies.\14\
---------------------------------------------------------------------------
    \5\E.g., U.S. Dep't of Justice, Title IX Legal Manual, Addendum 
post-Bostock: Editors Note, Updated Aug. 12, 2021, https://
www.justice.gov/crt/title-ix#Bostock.
    \6\Id.
    \7\Id.
    \8\U.S. Dep't. of Educ., Summary of Major Provisions of the 
Department of Education's Title IX Notice of Proposed Rulemaking, 
https://www2.ed.gov/about/offices/list/ocr/docs/t9nprm-chart.pdf.
    \9\81 Fed. Reg. 41,390, 41,537, Jul. 12, 2022 (``The Department 
does not propose any particular changes to Sec. 106.41 at this time. 
The Department instead plans to issue a separate notice of proposed 
rulemaking to address whether and how the Department should amend 
Sec. 106.41 in the context of sex-separate athletics, pursuant to the 
special authority Congress has conferred upon the Secretary to 
promulgate reasonable regulations with respect to the unique 
circumstances of particular sports.'').
    \10\Id.
    \11\``Nondiscrimination on the Basis of Sex in Education Programs 
or Activities Receiving Federal Financial Assistance: Sex-Related 
Eligibility Criteria for Male and Female Athletic Teams,'' Proposed 
Rule, Docket ID ED-2022-OCR-0143, [Fed. Reg. Vol. __, No. __, April __, 
2023], available at https://www2.ed.gov/about/offices/list/ocr/docs/t9-
ath-nprm.pdf (note: as of the drafting of these Minority views, the 
proposed rule had been sent to the Federal Register, but not yet 
published).
    \12\U.S. Dep't of Educ., FACT SHEET: U.S. Department of Education's 
Proposed Change to its Title IX Regulations on Students' Eligiblity for 
Athletic Teams (April 6, 2023), https://www.ed.gov/news/press-releases/
fact-sheet-us-department-educations-proposed-change-its-title-ix-
regulations-students-eligibility-athletic-teams.
    \13\Id.
    \14\Id.
---------------------------------------------------------------------------
    School-based sports and physical education play an 
important role in youth development and can contribute to 
physical, social, and intellectual health. However, the 
majority of LGBTQ youth experience harassment in school 
athletics, which increases the risks of mental health concerns 
and discourages physical activity.\15\ Large scale studies have 
found that as high as 82% of LGB athletes experience serious 
harassment and discrimination in a sports context.\16\ It is 
thus unsurprising that roughly two-thirds or 68% of LGBTQ 
identified youth have never taken part in any school or 
community sports.\17\ This is a much higher rate of non-
participation than their peers. LGBTQ youth who do participate 
in school sports report feeling less safe in athletic spaces 
due to bullying and harassment.\18\ LGBTQ youth also often 
experience bathrooms and locker rooms as sites of social 
vulnerability and violence.\19\
---------------------------------------------------------------------------
    \15\Scott B. Greenspan, et al., LGBTQ Youths' School Athletic 
Experiences: A 40-year Content Analysis in Nine Flagship Journals, 11 
J. of LGBT Issues in Counseling 190, 191 (2017).
    \16\Erik Denison, et al., Reviewing evidence of LGBTQ+ 
discrimination and exclusion in sport, 24 Sport Management Rev. 389, 
393 (2021).
    \17\Dawn Ennis, Why Are LGBTQ Youth Avoiding Sports In School? Fear 
Of Discrimination, Research Shows, Forbes (Sept. 15, 2021), https://
www.forbes.com/sites/dawnstaceyennis/2021/09/15/why-are-lgbtq-youth-
avoiding-sports-in-school-fear-of-discrimination-research-shows/? 
sh=495e97e34195.
    \18\Alex Kulick, et al., Three strikes and you're out: Culture, 
facilities, and participation among LGBTQ youth in sports, 24 Sport, 
Education & Society 939, 949 (2018).
    \19\Id. at 942.
---------------------------------------------------------------------------
    Transgender students experience even more fear and 
harassment than LGB students and research supports that anti-
discrimination policies can reduce the harassment and encourage 
sport participation.\20\ The American Medical Society for 
Sports Medicine issued a position statement in 2020 on the need 
to address LGBTQ discrimination in sport.\21\ It is shameful 
that H.R. 734, a bill that furthers such discrimination, was 
the first bill that this Committee marked up in the 118th 
Congress. To add insult to injury, the bill uses the aegis of 
protecting girls and women in sports, an admirable policy goal 
that is worthy of consideration by the Committee, to then do 
nothing other than discriminate against trans athletes.
---------------------------------------------------------------------------
    \20\Id. at 940, 947-49.
    \21\Denison, supra note 12, at 394.
---------------------------------------------------------------------------

                      Title IX and Women's Sports

    It is hard to overstate the transformational effect Title 
IX has had on American society. In its 50-year history, Title 
IX has created opportunities for millions of women and girls to 
participate in sports at the high school and college levels. By 
2016, two in every five girls in the United States played 
sports.\22\ This has in turn helped create and sustain women's 
professional athletic leagues and associations.\23\ The pursuit 
of equality of opportunity for girls and women in sports has 
had attendant effects on the pursuit of women's rights in 
America generally. The skills, traits and other lessons that 
flow from sports participation have helped women athletes 
succeed not only in professional sports arenas, but in 
workplaces, boardrooms, and legislative chambers.\24\
---------------------------------------------------------------------------
    \22\Women's Sport Foundation, Title IX and the Rise of Female 
Athletes in America, (Sept. 2, 2016) https://
www.womenssportsfoundation.org/education/title-ix-and-the-rise-of-
female-athletes-in-america/.
    \23\E.g., Sarah Pruitt, How Title IX Transformed Women's Sports, 
History.com (June 23, 2022) https://www.history.com/news/title-nine-
womens-sports.
    \24\See, e.g., Women's Sports Foundation, 50 Years of Title IX: 
We're Not Done Yet 15, 2021 https://www.womenssportsfoundation.org/wp-
content/uploads/2022/05/Title-IX-at-50-Report-FINALC-v2-.pdf (``Girls'' 
retention in sports greatly impacts their future growth outside of 
sports. Explicitly, girls build personal quality traits like team 
leadership, collaboration, and self confidence through sports 
participation and learn pertinent professional skills that lead to 
their success in careers after college as well as support their 
personal growth throughout life . . . In a survey of 400 women 
executives, 94% reported having competed as athletes. Among women C-
suite executives, 52% played college sports while 39% of the women 
working at the management level played college sports''); Shia Kapos, 
Athletes in Congress talk women and sports, Politico, July 16, 2021., 
https://www.politico.com/newsletters/women-rule/2021/07/16/sharice-
davids-cheri-bustos-lori-trahan-athletes-politics-493615.
---------------------------------------------------------------------------
    Further, while the public may recognize the law's impact on 
sports primarily, Title IX prohibits sex discrimination in all 
vestiges of education; it has helped secure advancements for 
women in academic and career fields traditionally dominated by 
men and provided procedural and substantive rights for victims 
of sex discrimination, sex harassment and sexual assault in 
educational settings, irrespective of their gender.\25\
---------------------------------------------------------------------------
    \25\50 Years of Title IX, supra note 20, at 7 (``Pathways once 
closed or significantly inaccessible to women have opened as Title IX 
created greater access to academic pursuits leading to careers in an 
array of occupations for women, including but not limited to 
astronauts, athletes, carpenters, chief executive officers, 
construction workers, doctors, engineers, entrepreneurs, farmers, 
filmmakers, firefighters, football coaches, investors, journalists, 
lawyers, musicians, police officers, military personnel, rock stars, 
Supreme Court justices, and television news anchors.''); U.S. Dep't of 
Justice, Title IX Legal Manual D. Sexual Harassment, Updated Aug. 12, 
2021, https://www.justice.gov/crt/
title-.ix#D.%C2%A0%20Sexual%20Harassment.
---------------------------------------------------------------------------
    Despite the progress made under Title IX, there are still 
numerous obstacles to true equality for girls and women in 
educational settings, especially high school and college 
sports. While girls'' participation in sport has increased 
1000% since Title IX, their participation numbers have still 
not reached that of boys' 50 years ago.\26\ At its half-century 
mark, approximately 90% of all educational institutions are not 
in compliance with Title IX.\27\ Many top athletic programs 
spend 40 50% more in support of their men's teams than their 
comparable women's teams.\28\ Schools across the country apply 
the law selectively, sometimes inflating numbers to give the 
illusion of equity where it does not exist.\29\ Additionally, a 
lack of enforcement, particularly on issues of sexual abuse and 
bigotry, has obstructed IX's potential to normalize equal 
treatment across sex and gender in education.\30\
---------------------------------------------------------------------------
    \26\Nat'l. Ctr. for Educ. Stats., Fast Facts: Title IX, https://
nces.ed.gov/fastfacts/
display.asp?id=93.
    \27\Schultz, supra note 4, at 97.
    \28\Id.
    \29\Zara Abrams, Title IX: 50 Years Later, Am. Psych. Ass'n. News & 
Advocacy (June 28, 2022) https://www.apa.org/news/apa/2022/title-ix-
landmark.
    \30\ Anne Blaschke, Title IX has been spectacularly successful and 
disturbingly unfulfilled, Wash. Post, June 23, 2022, https://
www.washingtonpost.com/outlook/2022/06/23/title-ix-has-been-
spectacularly-successful-disturbingly-unfulfilled/.
---------------------------------------------------------------------------
    Female athletes and their advocates continue to campaign 
for equal access to participation opportunities in sports and, 
once they are participants, equitable treatment compared to 
their male counterparts.\31\ Whether it is the four-time World 
Champion U.S. Women's National Soccer Team filing a successful 
pay discrimination complaint against U.S. Soccer with the Equal 
Employment Opportunity Commission (EEOC),\32\ or student 
athletes in the NCAA Women's Basketball National Tournament 
taking to social media to document the inequitable training 
facilities they were offered,\33\ women athletes continue to 
experience inequitable treatment in sports and too often must 
take it upon themselves to fight discrimination. It is for 
these reasons that Committee Democrats offered several 
amendments to H.R. 734, to attempt to live up to the aims of 
the bill's title--namely the protection of women and girls in 
sports.
---------------------------------------------------------------------------
    \31\50 Years of Title IX, supra note 20, at 28.
    \32\Rachel Triesman, The U.S. national women's soccer team wins $24 
million in equal pay settlement, NPR, Feb. 22, 2022, https://
www.npr.org/2022/02/22/1082272202/women-soccer-
contracts-equal-pay-settlement-uswnt.
    \33\Emine Yucel, Men's And Women's NCAA March Madness Facilities, 
Separate And Unequal, Spark Uproar, NPR, Mar. 29, 2021, https://
www.npr.org/2021/03/19/979395795/mens-and-
womens-ncaa-march-madness-facilities-separate-and-unequal-spark-uproar.
---------------------------------------------------------------------------
    The first was the Democratic substitute, offered by Rep. 
Alma Adams (D-NC), modeled after her bill the Fair Play for 
Women Act.\34\ The Adams amendment expanded reporting 
requirements for K-12 and college athletics data, and made all 
information easily accessible to the public, so students and 
parents could see how schools are claiming Title IX compliance 
with the hopes that such sunlight would expose athletic 
programs that are using fuzzy math to appear Title IX 
compliant. Further the amendment would make athletic 
associations like the National College Collegiate Association 
(NCAA) explicitly liable under Title IX as we know some of the 
more famous examples of disparities in women's and men's 
athletics have come to light during NCAA events. The Adams 
amendment provided a private right of action for athletes to 
push for change at their schools, and also empowered the 
Department to levy fines on colleges it found non- compliant 
with Title IX. And perhaps most importantly, the bill would 
have required annual Title IX training for athletes, and 
athletic department and athletic association staff, so that all 
coaches, trainers, and other personnel would know their 
responsibilities under Title IX, fostering a culture of 
compliance. The Chair ruled that the Adams amendment was not 
germane to the fundamental purpose of the underlying bill, 
preventing trans girls and women from participating in girls' 
and women's sports.
---------------------------------------------------------------------------
    \34\H.R. 9615, 117th Cong. (2022).
---------------------------------------------------------------------------
    Rep. Mark Takano (D-CA) offered two amendments designed to 
build upon the protections of Title IX for women and girls. The 
first amendment codified the existing regulations related to 
athletics promulgated under Title IX.\35\ While these 
regulations are long standing, they are often the very 
regulations that schools are not in compliance with, sustaining 
the disparities between men's and women's athletic programs. 
Female athletes and their advocates continue to campaign for 
equal access to participation opportunities in sports and, once 
they are participants, equitable treatment compared to their 
male counterparts.\36\ Whether it is the four- time World 
Champion U.S. Women's National Soccer Team filing a successful 
pay discrimination complaint against U.S. Soccer with the Equal 
Employment Opportunity Commission (EEOC),\37\ or student 
athletes in the NCAA Women's Basketball National Tournament 
taking to social media to document the inequitable training 
facilities they were offered,\38\ women athletes continue to 
experience inequitable treatment in sports and too often must 
take it upon themselves to fight discrimination.
---------------------------------------------------------------------------
    \35\Athletics, 34 C.F.R. Sec. 106.41.
    \36\50 Years of Title IX, supra note 20, at 28.
    \37\Rachel Triesman, The U.S. national women's soccer team wins $24 
million in equal pay settlement, NPR, Feb. 22, 2022, https://
www.npr.org/2022/02/22/1082272202/women-soccer-
contracts-equal-pay-settlement-uswnt.
    \38\Emine Yucel, Men's And Women's NCAA March Madness Facilities, 
Separate And Unequal, Spark Uproar, NPR, Mar. 29, 2021, https://
www.npr.org/2021/03/19/979395795/mens-and-
womens-ncaa-march-madness-facilities-separate-and-unequal-spark-uproar.
---------------------------------------------------------------------------
    Recognizing the numerous instances where educational 
programs may fall short of the mark protecting the rights of 
athletes, in early 2023 the Department issued resource 
documents for schools and colleges to help them ``evaluate 
whether a school is meeting its legal duty to provide equal 
athletic opportunity based on sex consistent with Title 
IX.''\39\ The documents provide an extensive overview of the 
benefits, opportunities, and treatment men's and women's teams 
may receive and offer examples and queries to help determine 
whether a school is meeting its Title IX obligations. It 
provides worksheets to analyze whether a school is meeting 
obligations related to athletic scholarships and financial 
assistance, and meeting the interests and abilities of student 
athletes.\40\ These documents, while illustrative and helpful, 
do not carry the force of law.
---------------------------------------------------------------------------
    \39\U.S. Dept. of Educ., Off. for Civ. Rts., Title IX and Athletic 
Opportunities in K-12 Schools, Feb. 2023 https://www2.ed.gov/about/
offices/list/ocr/docs/ocr-k12.
    \40\Id.
---------------------------------------------------------------------------
    By codifying the existing Title IX athletic regulations 
into law, the Committee could signal that we were prepared to 
build upon the 50 years of progress under Title IX, with the 
expectation that the Department could provide more clarity to 
schools in a new round of regulation of how they can work to 
ensure equity in athletics, protecting women and girls in 
sports. The Chair ruled that the Takano amendment was not 
germane to the fundamental purpose of the underlying bill, 
preventing trans girls and women from participating in girls' 
and women's sports.
    The second Takano amendment simply expressed a sense of 
Congress that all people should have the right to participate 
in sports free from discrimination, and that student athletes 
have particular rights to train and play in safe environments, 
be treated with dignity and respect, retain a right to privacy 
over their bodies, and that all students, including transgender 
students, should be protected. Again, the Chair ruled that this 
language was non-germane to the underlying bill.
    Rep. Suzanne Bonamici (D-OR) offered an amendment that both 
protected women and spoke to the practicality of H.R 734--in a 
world where H.R. 734 became law, how would schools determine 
whether an athlete's ``sex is male''?\41\ As the bill defines 
sex as based ``solely on a person's reproductive biology and 
genetics at birth'',\42\ supporters of H.R. 734 would suggest 
that simply providing the sex assigned at birth on a birth 
certificate would be sufficient proof. But we know of the 
approximately 3.6 million births in the U.S. every year, a 
considerable number of children are born either intersex or 
with ambiguous genitalia.\43\ This does not include children 
born with chromosomal variations other than XX and XY which may 
only present themselves later in life. This would suggest 
before even considering trans athletes, birth certificates will 
not accurately reflect the ``biological'' or ``genetic'' sex of 
all children. Recognizing this, enforcement of H.R. 734 will 
likely require female student athletes to either subject 
themselves to genital examination or to disclose their 
menstruation data--both enforcement mechanisms that have been 
proposed as part of trans sports bans at the state level.\44\ 
Rep. Bonamici's amendment would have foreclosed on the latter, 
but it was defeated.
---------------------------------------------------------------------------
    \41\H.R. 734 Sec. 2, 118th Cong. (2023).
    \42\Id. When not directly quoting bill text, this report will use 
the terminology ``sex assigned at birth'' a term the medical community 
has determined is more inclusive of the variety of sex and gender 
possibilities we realize are possible. University of Washington 
Medicine, LGBTQ+ Inclusion: Glossary, (2023) https://
www.uwmedicine.org/practitioner-resource/lgbtq/lgbtq-
inclusion-glossary.
    \43\Based on statistics for the number of live births in the US in 
2021, and rates of birth of intersex children and children with 
ambiguous genitalia, there are approximately 2,600 to 6,000 births each 
year in the U.S. where a child's genitalia may not correspond with 
either a male or female assigned sex. Cleveland Clinic, Atypical 
Genitalia (Formerly Known as Ambiguous Genitalia), Mar. 29, 2022, 
https://my.clevelandclinic.org/health/diseases/22470-atypical-
genitalia-formerly-known-as-ambiguous-genitalia (``Atypical genitalia 
occurs in about 1 out of every 1,000 to 4,500 births''); Intersex 
Society of North America, How common is Intersex, (2008) https://
isna.org/faq/frequency/ (``If you ask experts at medical centers how 
often a child is born so noticeably atypical in terms of genitalia that 
a specialist in sex differentiation is called in, the number comes out 
to about 1 in 1500 to 1 in 2000 births.'').
    \44\See, e.g., Philip Marcelo, Florida weighs mandating menstrual 
cycle details for female athletes, Associated Press, Feb. 3, 2023; 
Aleks Phillips, Kansas GOP Bill Authorizes Genital Exams of 
Schoolchildren, Critics Say, Newsweek, Apr. 6, 2023.
---------------------------------------------------------------------------

             HR 734 Is Not About Protecting Women's Sports


                   THE FAULTY ASSUMPTIONS OF H.R. 734

    Unfortunately, the theory behind H.R. 734 is that the 
participation of trans women in girls' and women's sports is 
the policy issue from which these sports need the most urgent 
``protection''.
    Further this need to protect sports justifies the decision 
to make the bill the first to be marked up in the 118th 
Congress. Putting aside the blatant offensiveness of such a 
policy argument for the moment, it is important to note 
multiple points.
    First, transgender youth are a tiny fraction of the youth 
population in this country (roughly 1.8%), and an even smaller 
fraction of that already small population are involved in 
athletics.\45\ It appears there are only 35 documented 
instances of out trans athletes competing at the collegiate 
level.\46\ To suggest that the participation of 35 women 
athletes among the approximately 110,000 women athletes that 
compete yearly in college sports somehow justifies 
congressional action at this time is ludicrous. Experts in the 
field of genetics, science, and sport have stated that 
discrimination against transgender student athletes is not 
based on science.\47\ Additionally, participation in sports has 
significant benefits for transgender students including higher 
academic performance and lower rates of depression and 
suicidality.\48\ Many regional and national athletic 
associations are establishing or revisiting polices on gender 
equity and non-discrimination in athletic participation at this 
time.\49\ This is an important step in the development of 
policy and there is no urgency that suggests Congress need 
involve itself at this time.
---------------------------------------------------------------------------
    \45\Based on questionnaire data collected by the Centers for 
Disease Control and Prevention as part of the 2017 Youth Risk Behavior 
Survey conducted in 10 U.S. states and 9 large urban school districts. 
The survey defined ``transgender'' individuals as those whose gender 
identity does not align with their sex. ``Across the 19 sites, 94.4% 
(range = 94.0%-94.8%) of students responded ``No, I am not 
transgender''; 1.8% (range = 1.0%-3.3%) responded ``Yes, I am 
transgender''; 1.6% (range = 0.9%-2.5%) responded ``I am not sure if I 
am transgender''; and 2.1% (range = 1.5%-4.7%) responded ``I do not 
know what this question is asking.'' Ctrs. for Disease Control & 
Prevention, Morbidity and Mortality Weekly Report: Transgender Identity 
and Experiences of Violence Victimization, Substance Use, Suicide Risk, 
and Sexual Risk Behaviors Among High School Students--19 States and 
Large Urban School Districts, 2017, (Jan. 25, 2019), https://
www.cdc.gov/mmwr/volumes/68/wr/mm6803a3.htm.
    \46\Cyd Zeigler & Karleigh Webb, These 35 trans athletes have 
competed openly in college, Outsports, Mar. 29, 2023, https://
www.outsports.com/trans/2022/1/7/22850789/trans-athletes-
college-ncaa-lia-thomas (``Outsports knows there are countless other 
trans athletes who have competed at the collegiate level who have not 
been publicly out or out to teammates.'')
    \47\Tinbete Ermyas & Kira Wakeham, Wave of Bills to Block trans 
Athletes Has No Basis In Science, Researcher Says, NPR, Mar. 18, 2021, 
https://www.npr.org/2021/03/18/978716732/wave-of-new-bills-say-trans-
athletes-have-an-unfair-edge-what-does-the-science-s.
    \48\Schultz, supra note 4, at 101.
    \49\E.g., Press Release, NCAA, Board of Governors updates 
transgender participation policy, Jan. 19, 2022, https://www.ncaa.org/
news/2022/1/19/media-center-board-of-governors-updates- transgender-
participation-policy.aspx.
---------------------------------------------------------------------------
    This is especially true as we know transgender youth are 
currently experiencing challenges to nothing less than their 
right to exist. H.R. 734 is just one of many proposals that 
collectively aim to ostracize trans youth and trans individuals 
from the public arena.\50\ Research shows that due to stigma, 
trans youth experience depression and suicidal ideation at 
disproportionate rates compared to their peers.\51\ Recent data 
from the CDC show that transgender youth are 10 times more 
likely to experience homelessness.\52\ Transgender students are 
also more likely to feel unsafe at school, to experience 
bullying and other forms of violence including being threatened 
with a weapon at school, and social isolation. Experiences of a 
hostile school climate, potentially compounded by an unstable 
living situation, lead to disproportionate drop out rates for 
these students.\53\ Barriers to attaining school success have 
not inspired our Republican colleagues to create policies to 
improve outcomes for this group of students. Rather, around the 
country we see organized attacks against these students. In the 
first three months of 2023, more than 380 anti-transgender 
state bills have been introduced, including a bill in Florida 
that would remove transgender children from their homes if 
their parents support and affirm them.\54\
---------------------------------------------------------------------------
    \50\A Congress.gov search of ``biological sex'', a term known not 
to be inclusive of the LGBTQ+ community was used in least eight bills 
introduced in the 117th Congress, including H.R. 8731, Protect 
Children's Innocence Act, H.R. 8171, Protect Minors from Medical 
Malpractice Act of 2022, and H.R. 1926 Protecting Children From 
Experimentation Act of 2021. https://www.congress.gov/quick-search/
legislation?wordsPhrases=%22biological+sex%22&word
Variants=on&congressGroups%5B%5D=0&congresses%5B%5D=117&legislation
Numbers=&legislativeAction=&sponsor=on&representative=&senator=.
    \51\Brooke Migdon, Transgender Children Are More Likely to Fce 
Mental Health Challenges, Study Says, The Hill, Jul. 22, 2022, https://
thehill.com/changing-america/well-being/mental- health/3570956-
transgender-children-are-more-likely-to-face-mental-health-challenges-
study-says/.
    \52\Carolyn Jones, Transgender Youth Almost 10 Times More Likely to 
be Homeless as Their Peers, Data Shows, EDSource, June 7, 2021, https:/
/edsource.org/updates/transgender-youth-
almost-10-times-more-likely-to-be-homeless-as-their-peers-data-shows.
    \53\ U.S.Dep't. of Health and Hum. Svcs., Off. of Disease 
Prevention and Health Promotion, Social Determinants of Health 
Summaries: Graduation, https://health.gov/healthypeople/priority-areas/
social-determinants-health/literature-summaries/high-school-graduation.
    \54\James Factora, Florida Lawmakers Proposed Allowing Trans Kids 
to be Removed from Supportive Parents, Them, Mar. 8, 2023, https://
www.them.us/story/florida-bill-trans-kids-
supportive-parents.
---------------------------------------------------------------------------
    Bills targeting curriculum inclusion, often referenced as 
``Don't Say Gay'' bills, censor teacher's speech by prohibiting 
mention of LGBTQ people or gender diversity in their 
classrooms. The American Library Association reports that 
attempts to ban books in schools are up four-fold with the top 
three most banned books addressing themes of transgender 
identity or gender non-conformity.\55\ Twenty states now 
prohibit transgender students from participating in school 
sports aligned with their gender.\56\ The focus of these 
coordinated attacks was made all the more clear in early March 
2023, when a speaker announced from the Conservative Political 
Action Conference stage that ``transgenderism must be 
eradicated from public life entirely.''\57\ This bill is an 
attempt to draw the federal government into the on-going GOP 
attacks on transgender people. Discriminating against a 
specific minority group with whom the Majority disagrees cannot 
be a legitimate governmental interest. For all these reasons, 
Rep. Pramila Jayapal (D-WA) offered the last Democratic 
amendment to rename the bill the Stigmatizing Vulnerable 
Children Act of 2023. The amendment was defeated.
---------------------------------------------------------------------------
    \55\Miranda Mazariegos & Meghan Collins Sullivan, Efforts to Ban 
Books Jumped an `Unprecedented' Four-fold in 2021, ALA Report Says, 
NPR, Apr. 4, 2022, https://www.npr.org/2022/04/04/1090067026/efforts-
to-ban-books-jumped-an-unprecedented-four-fold-in-2021-ala-report-says.
    \56\Movement Advancement Project, ``Bans on Transgender Youth 
Participation on Sports'', https://www.lgbtmap.org/equality-maps/
sports_participation_bans, (last visited, April 7, 2023).
    \57\ Diana Goetsch, Opinion: What the CPAC Speaker Meant When He 
Said `Transgenderism Must Be Eradicated', L.A. Times, Mar. 8, 2023, 
https://www.latimes.com/opinion/story/2023-03-08/transgender-cpac-
michael-knowles-rolling-stone-ron-desantis.
---------------------------------------------------------------------------
    Last but most important to the stated policy goal of H.R. 
734, the majority of women athletes and their advocates do not 
consider the participation of transgender youth in women's 
sports an existential threat to their survival.\58\ To the 
contrary, many woman's groups have recognized that inclusion of 
trans youth is an opportunity to share the attendant benefits 
of sports participation with all women regardless of their 
gender identity.
---------------------------------------------------------------------------
    \58\E.g., Women's Sports Foundation, Participation of Transgender 
Athletes in Women's Sports, https://www.womenssportsfoundation.org/wp-
content/uploads/2016/08/participation-of-transgender-athletes-in-
womens-sports-the-foundation-position.pdf.
---------------------------------------------------------------------------

        Democratic Amendments Offered During Markup of H.R. 734

    Committee Democrats offered five amendments to improve the 
bill. These amendments would have refocused the bill on issues 
that Women athletes have actually advocated for to protect 
their sports. Committee Republicans rejected two of the five 
amendments, and ruled the others out of order. Ranking Member 
Scott noted during consideration of H.R. 734 that simply 
because an amendment was not germane, that did not require the 
Chair to rule it as such, and if it improved the bill, it 
should get an up or down vote on its inclusion. The Chair was 
not willing to do that. These are the Democratic amendments 
that were considered:

----------------------------------------------------------------------------------------------------------------
              Amendment                       Offered By              Description              Action Taken
----------------------------------------------------------------------------------------------------------------
2....................................  Ms. Adams..............  Democratic Substitute..  Ruled non-germane
3....................................  Ms. Bonamici...........  Protection of student    Defeated
                                                                 athlete menstrual data.
4....................................  Mr. Takano.............  Codification of          Ruled non-germane
                                                                 existing Title IX
                                                                 Athletic equity
                                                                 regulations.
5....................................  Mr. Takano.............  Student Athletes Bill    Ruled non-germane
                                                                 of Rights.
6....................................  Ms. Jayapal............  Re-titled the bill.....  Defeated
----------------------------------------------------------------------------------------------------------------

                               Conclusion

    For the reasons stated above, Committee Democrats 
unanimously opposed H.R. 734 when the Committee on Education 
and the Workforce considered it on March 8, 2023. We urge the 
House of Representatives to do the same.