Would adding gender identity to Title IX be a game changer? Some say yes, and not in a good way.

Taylor Silverman, 27, didn’t set out to be an advocate for women’s sports. The skateboarder from Kalamazoo, Michigan, however, has decided not to stay silent about concerns facing female athletes.

Silverman has been skateboarding for the past 11 years, and while she has frequently participated in more local competitions, she has also done bigger events that require qualifying contests and the possibility of cash prizes.

That was the case in December, when after winning first place in two qualifiers she made it to the final round of the Red Bull Cornerstone competition featuring skaters from around the Midwest.

Prize money was significantly less

At the final skate, Silverman learned she’d face off against a transgender competitor in the women’s round. She gave it her best shot but ended in second place. The transgender athlete took first place and $5,000 in Red Bull prize money, Silverman complained on Instagram, and she got about half that: $2,750.

“I just felt like it was pretty unfair,” Silverman said. “It took away a lot of the fun of the contest to feel like I could only compete for second place.”

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This was third time Silverman competed against a transgender athlete and the second time she came in second place. The other competition was years ago, and neither Silverman nor the transgender competitor earned top placement.

More women like Silverman are speaking out about the uneven playing field they say they face, whether in high school, college or beyond.

Thursday marks the 50th anniversary of the Title IX education law that bans discrimination “on the basis of sex” in schools that receive federal funding. Women are celebrating how much progress they’ve made in the decades since Title IX guaranteed the right to equal athletic opportunities in school. Silverman joined other athletes and advocates fighting for fairness in sports at a rally Thursday in Washington, D.C.

“The more I saw similar stories to mine in the news and heard other women speaking up, I felt this moral obligation to say something,” she said.

Biden seeks to change Title IX language

Women have made great strides in sports participation, but some say that progress is at risk. President Joe Biden and his administration have made it their mission to prioritize gender identity, and Biden started his presidency with an executive order that instructs schools to let students choose which sports teams, bathrooms and locker rooms coincide with their gender, regardless of which gender they were assigned at birth.

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Now, the Biden administration seeks to codify this language in the Title IX law through a new set of draft rules the Education Department announced Thursday. Before taking effect, the proposed rules must first be posted for public comment.

Over the years, Title IX has come to encompass much more than women’s sports. And Biden wants to unravel other important Title IX reforms that former Education Secretary Betsy DeVos oversaw during the Trump administration. She put in place rules that returned due process and free speech protections to Title IX sexual assault and harassment guidelines.

Yet, it’s the inclusion of the new language around gender that seems most at odds with the original intent of Title IX: ensuring more opportunities for women in sports.

Jennifer Braceras, director of the Independent Women's Law Center and a former member of the U.S. Commission on Civil Rights, argues that expanding the definition of sex to include gender identity goes beyond what Congress has authorized and will in effect “erase women.” Currently, Title IX says nothing about gender or gender identity.

“The Biden administration is trying to accomplish through the back door what Congress tried but failed to do through the democratic process,” Braceras said. “That’s a direct threat to democracy. Americans need to be able to feel confident that it is the people they elect who make our laws, not bureaucrats in some federal agency.”

Biden believes he has the legal authority to make these changes, following the 2020 Supreme Court decision Bostock v. Clayton County that found employment discrimination based on sexual orientation or gender identity runs afoul of Title VII of the Civil Rights Act, which bars employers from firing or refusing to hire an individual “because of … sex.”

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While the majority opinion avoided applying the decision more broadly, including to Title IX, Biden’s Justice Department has decided it does apply.

This puts the White House at odds with a growing number of states that are trying to limit transgender athletes' participation in women’s sports. More than a dozen states have passed laws, and in the past year more than 30 have introduced legislation.

Idaho was the first to pass a “fairness in women’s sports” bill into law in 2020. That measure is on hold because of a pending lawsuit.

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Madison Kenyon, 21, who runs track and cross country at Idaho State University, is one of the athletes seeking to defend the law. She competed against a transgender athlete five times her freshman year and said each time she lost and saw her teammates lose. She said it's fundamentally “unfair,” but she’s hopeful that the protections under Title IX will help her case prevail.

The issue of gender identity in sports made waves earlier this year when transgender college swimmer Lia Thomas, who in previous seasons competed on the men’s team, started winning women’s competitions, including an NCAA Division 1 championship.

Even transgender activist Caitlyn Jenner – a former Olympic athlete – called out Thomas’ ability to participate on the women’s team as conflicting with “common sense.”

FINA adopts new rule

This week, FINA, which governs elite swimming worldwide, issued a new “gender inclusion policy” that allows only transgender swimmers who transition before the age of 12 (prior to puberty) to compete. FINA is also considering an “open competition” category for future events.

This announcement is a welcome change for the young women I spoke with who are standing up for their right to fair competition. These athletes make a strong case, and they are reasonable, not hateful.

“I would encourage other people who recognize that this is unfair to speak up,” Silverman said. “We need people to use their voices, because if we don’t, there won’t be any change.”

Ingrid Jacques is a columnist at USA TODAY. Contact her at ijacques@usatoday.com or on Twitter: @Ingrid_Jacques 

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This article originally appeared on USA TODAY: Title IX: Debate over transgender athletes raises question of fairness