Wyoming’s top public school official is willing to risk millions of dollars in federal education funding by joining a crusade against transgender students.

Superintendent of Public Instruction Megan Degenfelder described herself as a “champion” of safe and fair athletic competition in explaining her support for Wyoming’s new blanket ban on transgender students competing in girls sports. In reality, she supports a measure that strips in-the-know front-line educators of the discretion they need to actually protect kids in exceedingly rare and nuanced circumstances. It’s a position that hurts kids — both cis- and transgendered — but scores political points with the anti-liberal extremists that increasingly dominate Republican politics. 

Last week, Degenfelder co-signed a letter written by Florida Education Commissioner Manny Diaz Jr. protesting proposed federal rules that would put states like Wyoming in violation of Title IX for blanket bans on transgender athletes. Sent to U.S. Secretary of Education Miguel Cardona, the letter was also signed by Arkansas and North Carolina education officials.

The hyperbolic letter claims if President Joe Biden’s proposed Department of Education rulemaking on the issue is adopted, it will “erase years of hard-fought opportunities for women in athletics.”

Before Gov. Mark Gordon allowed the Legislature’s ban on trans athletes to become law without his signature in March, he said Wyoming has only four transgender students affected by the new law. Four! The state has about 91,000 K-12 students.

Gordon called the new law “draconian” and “discriminatory.” I wish he’d convinced Degenfelder and lawmakers to reach the same conclusion. Failing that, I wish he’d had the courage to act on his convictions and veto the measure.

Defying the Civil Rights Act’s Title IX protection of women should come at a significant cost. In addition to potentially losing federal funds — which annually provide up to one-quarter of the money for Wyoming’s K-12 school system — the state will also have to defend its anti-trans position for middle- and- high school sports in court. It will be expensive.

The law’s sponsor Sen. Wendy Schuler (R-Evanston), like Degenfelder, is a former coach who seems to think Title IX exclusively addresses women’s sports. Actually, it’s an inclusive law that says no person shall be discriminated against under any educational program or activity that receives federal financial assistance.

President Richard Nixon signed the law in 1972, but it didn’t have a major impact on women’s sports until an intercollegiate athletics policy was adopted in 1979. That policy declared women are entitled to the same athletic opportunities as men.

Debate in the Legislature shows how far apart opinions are about the trans athlete ban, even within the same party.

“Regardless of how anyone tries to frame the question of the transgender athlete … and their potential for a lost opportunity and their wellbeing, what we really need to do is think about the biological female, and put them at the forefront of the equation,” Schuler told the House Education Committee. 

“This bill is a broad brush against an entire class of citizen[s], banning a group,” countered Rep. Jerry Obermueller (R-Casper). “It’s ironic that a bill about fairness is, on its face, unfair in its targeting of a particular group of Wyoming kids.”

The National Women’s Law Center says transgender students “already face horrific amounts of hatred, violence, and discrimination simply for being who they are.”

On its website, the NWLC said “wrapping discrimination against girls and women who are transgender or intersex in the cloak of ‘protecting girls’ and women’s sports’ is unfounded and unhelpful, and often is nothing more than an attempt to mask anti-trans sentiment.”

In its 2020 ruling in an employment discrimination case, Bostock v. Clayton County, the U.S. Supreme Court affirmed that discrimination on the basis of a person’s gender identity is “inherently” a form of sex discrimination. Federal courts have consistently ruled Title IX and the U.S. Constitution afford all transgender individuals protection against sex-based discrimination.

Wyoming is one of 20 states that have banned all trans female athletes from playing in girls’ sports. But 17 states and the District of Columbia protect transgender students’ rights to pursue an education free from discrimination, including playing school sports.

Ban proponents contend biological males who identify as female have a distinct competitive advantage, and that allowing trans athletes to compete hurts cisgender women.

In fact, trans athletes vary in athletic ability just like cisgender athletes. A new report by E-Alliance, a research hub for gender and equity in sports, says biological data are severely limited and often methodologically flawed. It notes most studies do not adequately address factors such as height or lean body weight.

Dr. Eric Vilain, pediatrician and geneticist at National Children’s Hospital in Washington, D.C., told National Public Radio many trans women athletes take gender-affirming hormones that will reduce their muscle mass and red blood cells, which will decrease their speed, strength and endurance.

In other words, it’s not a one-size-fits-all scenario. Yet the Legislature, in all its wisdom, replaced a perfectly workable system of local control that enabled nuanced student- and situation-specific decision making with a top-down, big-government mandate.

And their ham-handedness doesn’t just hurt Wyoming’s trans kids.

“This divide and conquer tactic gets it exactly wrong,” says the American Civil Liberties Union, which opposes categorical bans. “Excluding women who are trans hurts all women. It invites gender policing that could subject any woman to invasive tests or accusations of being ‘too masculine’ or ‘too good’ at their sport to be a ‘real’ woman.”

These tests may include a gynecological exam, blood work or chromosome testing. In Florida, Wyoming’s new “partner,” high school officials have stopped asking student athletes about their menstrual history. The change followed months of opposition from parents, physicians and transgender advocates. 

But Florida added a new question for students: “What was your sex at birth?”

In a DOE statement, Degenfelder defended the state’s trans ban “because I will always push back against the federal government encroaching on our ability to deal with issues in a way that works best for Wyoming.”

But the superintendent ignores the fact that Biden’s proposed federal rule gives Wyoming much of the flexibility she says it needs. 

The federal rule would allow schools to decide the eligibility of transgender athletes on a case-by-case basis. That’s how Wyoming did it — quite successfully — before the blanket ban, and it may well be how it does it again after the blanket ban gets hammered in court. Schuler even included such a configuration in the bill as a fallback position for when her ban loses in court.

Wyoming Equality, a statewide LGBTQ advocacy group, plans to file a lawsuit before the ban goes into effect July 1. Based on previous court rulings protecting transgender individuals against sex discrimination, it’s likely the lawsuit will get Wyoming’s ban tossed. 

If it does, the new state law requires creation of an independent eligibility commission to review participation of individual trans student athletes in seventh through 12th grades.

That’s in line with the proposed federal rule, which allows schools to develop their own participation policies. Schools would use grade level and the competitiveness of the teams and sport to make their decisions, and they could still limit or deny transgender student athletes.

It’s essentially what the Wyoming High School Activities Association has used for years to determine eligibility for the few trans students who seek to compete against cisgender women. No local decision in Wyoming schools has ever been appealed.

Yet, Degenfelder is happy to ignore the success of the status quo in favor of fanning the flames of division. She released this statement: “This is another attempt by the Biden administration to usurp the rights of states that will make women’s sports unsafe and unfair.”

What’s unsafe and unfair is putting targets on the backs of Wyoming school kids for being who they are.

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