Biden DOJ Nominee Avoids Question on Transgender Athletes in Girls’ Sports

March 10, 2021 Updated: March 10, 2021

Vanita Gupta, President Joe Biden’s nominee for associate attorney general, refused to say at her Senate confirmation hearing on Tuesday whether she believes it’s fair for male-born transgender athletes to compete against biological girls.

Sen. Tom Cotton (R-Ark.), highlighting Gupta’s record of leading the Justice Department’s civil rights unit under the Obama administration, noted that she worked with the Education Department in 2016 to release a joint guidance clarifying their interpretation of federal law on sex-based discrimination in education.

The guidance, which was discontinued by the Trump administration, declared that “all students, including transgender students and students who do not conform to sex stereotypes, are protected from sex-based discrimination under Title IX.”

“So it means, for instance, that a biological male informs the school that he now identifies as a female the school would be required to allow him to participate on girl’s athletic teams. Is that correct?” Cotton asked.

Instead of directly answering the question, Gupta referred to one of Biden’s latest executive orders, which seeks to expand Title IX to encompass sexual orientation or gender identity.

“Senator, President Biden has been very clear and forthright about his support to protect all LGBTQ people in an executive order,” Gupta said. “He’s asked federal agencies to look at and consider application of the Bostock decision and other federal statutes as long as it’s consistent with the law, and if I am confirmed, I believe in supporting the dignity and well being of all people in accordance with all federal laws and the Constitution.”

The executive order she referred to is largely built on last year’s 6-3 Supreme Court decision in Bostock v. Clayton County, which holds that Title VII, the federal law banning sex-based discrimination in employment, covers homosexual and transgender people even though the statute doesn’t specially mention sexual orientation or gender identity.

Cotton then asked Gupta if she knew about Florence Griffith Joyner, the American athlete who currently holds the Olympic record in the women’s 100 meters. Gupta said no.

“No woman has ever run faster in those two races than she has,” Cotton continued. “But you know who has? Seventy-six high school boys in America in 2019. Do you really think it’s fair for high school girls, given the innate physical differences, to have boys who can beat the fastest women in the history of the world—transition to female identity and then compete against them in their sports?”

“Senator, I believe that LGBTQ people have the right in dignity to identify as they see fit, as do all Americans and if I am confirmed, I will be enforcing federal civil rights laws and the constitution and upholding that value,” Gupta said.

This isn’t the first time a Biden nominee was questioned by a Republican senator on this issue. A similar exchange took place last month when Sen. Rand Paul (R-Ky.) asked then-to be Education Secretary Miguel Cardona whether it “worried” him that Connecticut, his home state, allows students who are male by birth to compete and claim titles in girls’ sports at the expense of biological girls.

“I believe schools should offer the opportunity for students to engage in extracurricular activities even if they’re transgender,” Cardona said at that time. “I think that’s their right.”