HR-10090-119
Referred to the House Committee on Ways and Means.
Sponsored by Harriet Hageman (R-WY)
What it does
This bill would impose a 10% excise tax on a private college's total intercollegiate athletics spending for any year in which the school allows an individual whose biological sex is male to compete in a female-designated intercollegiate athletic program or event. The tax would apply to private (non-state) colleges and universities, not public institutions, and schools would be barred from passing the cost on to students through tuition or fee increases, with the Department of Education enforcing that restriction through regulation.
Who benefits
Advocacy groups and individuals who support excluding transgender women from women's collegiate sports may see this as achieving their policy goal; female athletes who compete against transgender women could see reduced competition in their view. Athletic conferences or institutions that already exclude transgender women from women's teams would face no tax and could gain a financial and competitive advantage over schools that do not.
Who is hurt
Private colleges and universities that permit transgender women to compete on women's teams would face a substantial new tax on their entire athletics budget, not just the disputed sport. Transgender student-athletes could lose opportunities to compete if institutions change policies to avoid the tax. Non-transgender teammates and athletic departments broadly could see reduced funding for facilities, scholarships, and programs if the tax is triggered, and coaches/staff could face budget cuts. Public colleges are excluded from the tax, creating differing treatment between public and private institutions.
Supporters argue
Supporters argue that biological differences create competitive advantages that they believe should be preserved in female sports categories, and that using the tax code creates a strong financial incentive for private institutions to adopt eligibility rules consistent with that view without directly regulating athletic associations. They contend that tying the tax to total athletic department spending, rather than a flat fee, creates a meaningful deterrent proportional to an institution's resources, and that the anti-pass-through provision protects students from bearing the cost.
Opponents argue
Opponents argue that a 10% tax on an entire athletic department's budget is a disproportionate penalty triggered by a single athlete's participation, effectively coercing institutional policy through the tax code rather than direct civil rights legislation. They contend the bill could conflict with Title IX enforcement discretion, raises equal protection concerns by singling out transgender individuals for adverse tax treatment, and that using taxation to penalize disfavored conduct rather than raise revenue tests the traditional line between a tax and a punitive measure.
Constitutional context
Congress has broad power to tax under the Taxing and Spending Clause, but NFIB v. Sebelius (2012) established that an exaction functioning as a punishment for specific conduct rather than a genuine revenue measure may need to be analyzed as a penalty requiring separate constitutional authority; critics could argue this 10% levy, triggered solely by a policy choice, resembles a regulatory penalty rather than a tax. The bill may also raise Fifth Amendment equal protection concerns depending on how courts assess classifications based on transgender status.
Checks and balances
Congress would create the tax and delegate enforcement of the anti-pass-through rule to the Department of Education, with the IRS administering the tax itself and courts available to review both the tax's classification as a genuine tax versus a penalty and any equal protection challenges.
Historical precedent
There is no direct historical precedent for a federal excise tax targeting a specific athletic eligibility policy, though the bill's tax-as-regulatory-incentive structure resembles other Internal Revenue Code excise taxes used to discourage disfavored institutional conduct, such as the excise tax on large private university endowments.