INDIANAPOLIS — A proposed amendment to Title IX could give transgender students in Indiana the ability to play school sports once again.
Last year, Republican lawmakers passed legislation that banned transgender girls from playing on girls' sports teams in school. The proposed change from the U.S. Department of Education could ensure transgender students around the country can play on teams, too.
The past year has been a frustrating one for the Clawson family.
"It has been very hard for Kirin. She has basically said a few times, 'Why do all the adults in the state hate me?'" said Nathaniel Clawson.
The GOP's ban last year ensured Nathaniel and Beth Clawson's 10-year-old daughter, Kirin, a transgender girl, can't play on school sports teams like her classmates can once she hits the sixth grade.
"She is very worried she's not going to be able to play sports with her friends," Nathaniel said.
The Clawsons say Kirin has always known who she was. She transitioned seven years ago.
"Since she has been able to communicate, she has been living as herself. And for people to try and say that she has to deny who she is in this one specific area when she's just a kid wanting to play games. I think that's what people keep forgetting, especially with sports, is they're just kids," Beth Clawson said.
But a proposed amendment to Title IX by the US Department of Education would change that.
The amendment would make clear that policies banning transgender students from participating on sports teams because of their gender identity violate Title IX, which prevents discrimination in education.
Jennifer Drobac, professor at Indiana University's McKinney School of Law, said this change has to be made to comply with the Constitution.
"In 2020, the United States Supreme Court said, 'Look, discrimination based on trans status is discrimination based on sex, you can't do it.' It's an equal protection violation, but it's also a violation under Title VII. So the Department of Education is basically just making Title IX consistent again with Title VII again and consistent with the U.S. Constitution," Drobac said.
Drobac explained that often when a Title VII ruling comes down, it can follow that a Title IX change happens, too, as they both seek to prevent discrimination.
But now, Gov. Eric Holcomb is joining 24 governors from around the country in speaking out against the proposed Title IX change, saying, "Leaving aside the Department's utter lack of authority to promulgate such a regulation, neither states nor schools should be subjected to such a fluid and uncertain standard. Nor, most importantly, should the historic advancements and achievements of our sisters, mothers, and daughters be erased."
But Drobac said Title IX itself wasn't widely accepted when it was implemented 50 years ago. But over the years and decades since, attitudes about equality in schools and in sports have shifted dramatically.
Another attitude shift, Drobac said, seems likely for this issue, too.
"I tell my students, imagine you're alive 50 years from now looking back," Drobac said. "Can you imagine discriminating on the basis of race? No. Can you imagine discriminating on the basis of sex? No. And then, when you realize sexual orientation and trans status are merely subsets of sex discrimination, it becomes obvious, you really shouldn’t be discriminating against trans folk."
The Clawsons say they hope to see this change to Title IX implemented and with it, the law changed here in Indiana so kids like Kirin can hit the field with her classmates, too.
"I don't think people would see a difference. I think it would make the playing field level for everyone," Beth said.
The proposed amendment to Title IX isn't final yet.
"The Department of Education in order to make Title IX consistent with already existing law is going through this executive process where it’s going to hold hearings, ask for comment, etc., so there is a bit of hurdle jumping that has to go on,” Drobac said, adding that it is expected to be approved based on the precedent set by the Supreme Court in the 2020 Bostock ruling.
If an amendment to Title IX is approved, the new federal guidance is expected to take precedent over state law, including Indiana's transgender sports ban.