| Action | Promulgate Regulations Governing Biological Sex Specific or Separated Spaces and Activities |
| Stage | NOIRA |
| Comment Period | Ended on 12/17/2025 |
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Petition for Rulemaking: “Prevent biological males from female-only athletics and certain female-designated spaces”
This comment is submitted in opposition to Petition 432. While the petition is presented as a request for public health regulation under the authority of the Virginia Board of Health, the arguments advanced do not establish a public health hazard within the meaning of Title 32.1 of the Code of Virginia. Instead, the petition relies on subjective interpretations of harm and generalized assertions about biological difference that are treated as self-evident rather than supported through rigorous public health evidence. The regulations requested would foreseeably create significant harm to both transgender and non-transgender Virginians and would exceed the scope of the Board’s statutory mandate.
Under § 32.1-2 and § 32.1-12 of the Code of Virginia, the Board of Health’s regulatory authority is grounded in addressing hazards and nuisances to health and implementing preventive, curative, or restorative health measures. Petition 432 asserts that transgender women’s participation in female athletics and access to female-designated spaces constitutes such a hazard.
However, the petition does not present evidence of increased rates of physical injury, sexual assault, harassment, disease, or other measurable adverse health outcomes attributable to transgender inclusion. Rather, it relies primarily on the petitioners’ personal experiences of discomfort, distress, and perceived unfairness. While these experiences may be sincerely held, they are subjective and do not, on their own, establish a population-level public health risk warranting regulatory intervention.
Public health regulation requires a demonstrable nexus between the proposed rule and the prevention or mitigation of identifiable harm affecting the public at large. The petition does not meet this evidentiary threshold.
The petition asserts that biological differences between males and females create inherent and unavoidable athletic advantages that justify categorical exclusion. These assertions are presented as settled scientific facts, often without citation or with broad references to “biology” treated as self-explanatory.
While scientific research does show average sex-based differences in certain physical traits, particularly following puberty and largely associated with circulating testosterone, these findings are frequently overstated when removed from context. Group averages do not determine individual athletic outcomes, nor do they account for the substantial overlap in ability within and between sexes. Athletic performance is influenced by multiple factors, including training, coaching, experience, access to resources, sport-specific demands, and developmental timing.
Studies examining physiological changes following testosterone suppression in transgender women measure a limited set of biological variables over constrained observation periods and report group-level averages rather than individual performance outcomes or public health effects. These studies do not establish that transgender participation produces population-level harm, nor do they support categorical exclusion as a public health necessity. Treating such statistical averages as deterministic and universally applicable misrepresents the underlying science and does not provide a sufficient basis for regulation.
The petition attributes specific competitive outcomes such as missed finals placements or reduced scoring opportunities directly to the participation of transgender athletes. This attribution assumes causation without establishing it.
Competitive sports inherently produce unequal outcomes. Athletes routinely lose placements, records, and opportunities because another competitor is stronger, faster, taller, or better trained in a given season. The petition does not demonstrate that the outcomes cited would not have occurred absent transgender participation, nor does it show that existing sport-governing eligibility rules failed to function as intended.
Absent such evidence, these outcomes cannot reasonably be characterized as public health harms requiring regulatory action.
The petition further argues that transgender women’s presence in female-designated locker rooms and similar spaces constitutes a threat to privacy and safety. Notably, the petition does not allege misconduct, harassment, or assault. The asserted harm arises from presence itself.
Public health and safety frameworks regulate behavior, not identity or anatomy. Treating presence alone as a hazard necessarily shifts enforcement toward appearance-based suspicion and surveillance. This approach does not reduce risk; it expands it.
Moreover, the experiences described—being scrutinized, questioned, or made to feel unsafe in gendered spaces—are not unique to situations involving transgender people. Gender-nonconforming cisgender women and girls have long been subjected to similar treatment. Blanket exclusion policies do not prevent this harm; they legitimize it.
The regulations requested in Petition 432 would require institutions to determine eligibility for sports teams and access to facilities based on sex assigned at birth. In practice, enforcement would require documentation checks, invasive questioning, or visual assessment. These mechanisms carry predictable secondary and tertiary harms that the petition does not address.
Gender-nonconforming cisgender women and girls would be particularly affected. Women and girls who do not conform to stereotypical expectations of femininity due to hairstyle, body type, voice, disability, or athletic build are already disproportionately questioned in gendered spaces. A regulatory framework that legitimizes sex-based enforcement would increase scrutiny and exclusion of the very population the petition claims to protect.
Intersex individuals would also be disproportionately harmed. Intersex people are born with sex characteristics that do not fit typical definitions of male or female, involving chromosomes, hormones, anatomy, or combinations thereof. Sex-assigned-at-birth rules erase this biological reality and make enforcement especially invasive, forcing disclosure of sensitive medical information or subjecting individuals to arbitrary exclusion.
Transgender men and boys represent another foreseeable harm. Under strict sex-at-birth enforcement, transgender men and boys would be legally compelled to use women’s facilities or compete in women’s sports despite being visibly male. This would predictably increase confrontation, fear, and risk for all involved, directly undermining the petition’s stated safety rationale.
Children and adolescents are especially vulnerable under such a framework. Pubertal development varies widely, and rigid biological categorization is particularly inaccurate during adolescence. Policing access to facilities or sports would expose minors to questioning, surveillance, and humiliation at a developmental stage when privacy, stability, and adult trust are critical to healthy physical and psychological development.
Survivors of trauma, including survivors of sexual abuse or assault, would also be adversely affected. Many rely on predictability, privacy, and autonomy in intimate spaces. Increased monitoring, questioning, or confrontation in restrooms and locker rooms can be retraumatizing, regardless of gender identity. Trauma-informed public health practice recognizes these risks; the petition’s approach does not.
These impacts are not speculative. They are the foreseeable consequences of enforcing categorical sex-based regulations through monitoring and exclusion.
The petition characterizes exclusion as a preventive measure to protect women’s health. This framing misapplies public health principles. Preventive interventions are designed to reduce known risk factors for illness, injury, or death. The petition does not establish that transgender inclusion creates such risks.
By contrast, exclusion is associated with increased stress, social isolation, reduced physical activity, and avoidance of public spaces which are well-recognized determinants of poorer health outcomes. Regulation that predictably produces these effects cannot reasonably be characterized as protective. Public health cannot create safety by causing harm.
Many supporters of Petition 432 identify as parents of children participating in Virginia school sports and express a desire to protect girls’ athletic opportunities, encourage participation, and ensure fairness. These concerns merit careful consideration. However, the petition’s proposed regulatory approach does not address these goals in a manner consistent with public health evidence or youth development principles.
Youth athletics serve multiple functions beyond elite competition, including physical activity, social connection, skill development, and mental well-being. Participation varies widely by age, pubertal development, skill level, and competitive intensity. A categorical, statewide rule that treats all youth sports as if they present identical risks or stakes ignores this reality and imposes a blunt solution where nuance is required.
Claims that girls will withdraw from sports absent categorical exclusion assume, without evidence, that safety and fairness can only be achieved through exclusion. Schools and athletic organizations already manage wide variation in size, strength, and maturity through age groupings, skill tiers, weight classes, and sport-specific rules. These tools exist precisely because biological development does not occur uniformly and because youth sports prioritize participation alongside competition.
Moreover, enforcing sex-assigned-at-birth rules in school settings would itself create new barriers to participation. Children perceived as not fitting gender norms regardless of sex or gender identity would be more likely to be scrutinized, challenged, or excluded. In school environments, where peer acceptance and adult support are central to continued participation, this dynamic risks driving children away from sports due to fear of humiliation or conflict.
From a public health perspective, the primary objective in youth athletics is maximizing safe participation. Physical inactivity, chronic stress, and social exclusion are well-established risks to child and adolescent health. Policies that increase surveillance and suspicion in school sports settings undermine these goals. The petition does not demonstrate that transgender inclusion poses a greater risk to youth participation than the harms introduced by exclusionary enforcement.
While public opinion surveys are sometimes cited in support of exclusionary policies, regulatory decision-making is not determined by polling. The Board’s role is to assess evidence of health risk and regulatory necessity, not to adjudicate cultural disagreement or measure popularity.
Athletic fairness is already addressed through sport-specific eligibility rules, divisions, and governing bodies capable of adapting to evolving evidence. Even the petition’s own discussion of NCAA policy reflects the existence of nuanced, evidence-informed approaches.
A blanket regulatory approach imposed through public health rulemaking would be less precise, less adaptable, and more harmful than existing mechanisms, and is not justified absent a demonstrated public health necessity.
Pursuant to § 32.1-2, the evidence presented in Petition 432 does not establish that transgender participation in athletics or access to gender-designated facilities constitutes a hazard or nuisance to public health. The petition relies on subjective interpretations of harm rather than demonstrable, population-level health risks.
Pursuant to § 32.1-12, the regulations requested are not shown to be necessary to carry out the provisions of Title 32.1. The petition does not demonstrate that existing laws or regulations are insufficient to protect public health, nor that the proposed rules would prevent identifiable health harms.
Based on the evidence and foreseeable consequences, implementing the requested regulations would likely create new harms, including increased discrimination, surveillance, retraumatization, and avoidance of public spaces, that would undermine, rather than promote, the health and well-being of Virginians.
Petition 432 asks the Virginia Board of Health to treat subjective interpretations of harm as public health hazards and to respond with sweeping regulation that exceeds the Board’s mandate. The petition mischaracterizes scientific evidence, assumes causation without proof, and disregards the predictable harms of categorical exclusion.
For these reasons, Petition 432 should be denied.