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Amid the headlines about transgender athletes participating in women’s sports and whether athletics should be separated by biological gender, there is a hidden battle brewing behind the scenes that could interrupt efforts to maintain biological differences in sports.
School districts and athletic institutions have already faced hurdles regarding how to verify biological sex. While much of the focus has been on overturning the Biden administration’s Title IX definition of sex interpretation, once that happens, liberal school districts or leaders hoping to keep athletic eligibility by gender identity can dig their heels in with legal arguments about privacy, questions about verification mechanics, claims of discrimination, and, in some cases, doctors have refused to verify gender for the sake of athletic eligibility arguing the scope of the duties went beyond their purview.
“I anticipate we are going to see this more in the future,” Title IX attorney and expert Sarah Perry told Fox News Digital.
Meanwhile, John Bursch, from the Christian legal foundation Alliance Defending Freedom, told Fox News Digital that the looming concern over sex-verification for sports is “overblown.”
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“Trans activists continually bring up made-up concerns like this so that they can continue justifying allowing males in girls’ and women’s sports,” Bursch said.
As Bursch noted, the conundrum has reared its head recently in a handful of the 27 states that have imposed sex-separated athletics mandates.
In Idaho, one of the earliest states to adopt a sex-separation sports mandate, the courts struck down a law requiring athletes to verify their gender if questioned by someone else, arguing it targets women for invasive and intrusive medical procedures that males would not be subject to.
A similar issue in Florida played out in 2024 after a parent was investigated by county officials for allegedly sneaking their transgender child onto a female sports team. Even though the state’s law does not have a sex dispute provision for individuals, school district enforcement investigations still can.
In that case, the courts argued that Florida’s law requiring verification was not discriminatory, however. The case was eventually dismissed.
Meanwhile, pressure on the Sunshine State’s high school athletic association has also led to it removing questions from its physical evaluation forms that had been there for decades, according to local reporting.
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In Arizona, a dispute over the legitimacy of a birth certificate has led a school to suggest expensive chromosome testing to verify their gender. The mother told a local Arizona news outlet that it was a misprint they didn’t notice until registering their son for school, noting that for a busy mom, it was not her top priority. Her son was physically removed from the middle of his high school basketball tryouts.
The family ultimately got an amended birth certificate and a doctor’s sign-off clarifying the legal change and the boy’s eligibility to play on the boy’s basketball team. But school officials stood firm and ruled he was still ineligible to play. The family was told they could undergo chromosomal testing that would cost thousands of dollars.
Doctors were less willing to be helpful in Nevada, where the state’s interscholastic athletics association began requiring physicians to identify and sign-off on an athlete’s gender. A group of doctors subsequently argued that the information they were being asked to provide went beyond “the purpose of a sports medical clearance” and should come from “the students or families directly.”
“Additionally, it is imperative that patients are able to consult with their physicians confidentially to address all aspects of their physical, emotional, sexual, and mental health,” a letter the group of 18 doctors sent to the Nevada state high school athletic association added. “This confidentiality is crucial to ensure that students feel safe and supported in discussing sensitive health issues without concern that this information will be s hared with non-medical institutions or individuals. Breaching this confidentiality could undermine the trust between patients and their healthcare providers ultimately impacting the quality of care they receive.”
But, despite the potential tripwires, both Perry and Bursch pointed to the Constitution’s supremacy clause barring any change in the Biden-era Title IX interpretation which still remains amid various ongoing legal battles. Perry also noted that there is no requirement forcing school districts or education institutions to take federal dollars, but said that once they do “it is very clear that representations of contrary legal obligation are not sufficient to violate federal civil rights law.”
The Supreme Court heard oral arguments earlier this month that analysts have suggested show that the court is open to upholding state-level mandates requiring athletic eligibility be determined by biological sex.
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“We are going to see these questions ultimately, I believe, in the end, reach the Supreme Court before the Trump administration’s last day,” Perry said. “These are questions about preemption, about the Supremacy Clause, about the operation of states’ rights versus federal civil rights obligations, and they’re going to take a while to litigate.”
Perry pointed to deadlocks in Maine and California where trans-rights advocates are standing behind state law in order to defend allowing sports to remain separated by gender identity and not biological sex.
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