Girls’/Women’s Competitive Sport Needs to be Affirmed and Males Who Identify as Transgender Need to be Accommodated.
Sports have been continuously sex-segregated for over 100 years, across disciplines where male sex-linked advantages affect competitive opportunities for females. Congress passed Title IX in 1972 and approved its implementing regulations governing competitive sport in educational institutions in 1975, explicitly permitting girls and women’s sport to exist separate from boys’ and men’s sport. Law and sports policy makers understood that from the onset of male puberty, male bodies develop such that they are, as a group, faster, stronger, and more powerful than female bodies as a group. The performance gap between male and female athletes that emerges from that point typically ranges from 8-20% depending on the sport and event, and “up to 50% where explosive power and complex movement skills are pivotal.”
Science, Not Ideology, Dictates the Need for Sex Segregation in Sports.
If competitive sports were not sex-segregated, female athletes would rarely be selected for a team for which males and females try out, be seen in finals or on victory podiums, or experience the fair and safe competition enjoyed by their brothers. Congress has long understood the benefits of sport and the benefits of having the opportunity to train, compete and win. Repeatedly, Congress has affirmed that it wanted both our sons and our daughters to realize those benefits, which are well-documented in the academic literature. Girls and women learn the benefits of teamwork in pursuit of conference, state, and national championships; develop the self-esteem that flows from competent performance of physical skills; experience the life-changing power of competing against the best and standing on the podium; derive confidence borne of testing the limits of strength, speed, skill, and reaction time; and feel the power of personal achievement and public recognition when they are members of varsity and other select teams, and when they set school, meet, and other records of their accomplishments. And as sports double as an academic and social tool, these lessons and benefits reverberate well beyond the playing field throughout the lives of all female athletes.
The legislative history of Title IX makes it clear that Congress understood that even when height, size, and weight are equal, males as a group are stronger and generate more explosive force, so that if males and females are forced to compete against each other, not only do males have and unfair performance advantage, the physical safety of females is also differently at risk.
At the time Title IX’s athletics regulations were passed, no one raised the issues of gender identity or whether males who identify as transgender should be allowed to participate in the space created by Congress to secure the sport experiences of females. Today, however, males who identify as transgender are asking for the right to compete in girls’ and women’s sport, directly against female athletes, even though males possess sex-linked performance advantages due to males’ greater size, strength, power, speed, and more . Should the desires of these males take precedence over females’ desire for fair and safe competitive sport? Our position is, No.
States are Passing Conflicting Laws.
States have taken four general approaches to the issue of the inclusion of males who identify as transgender in girls’ and women’s sport. Some expressly require males and females to participate in high school sports according to their birth sex. Others expressly require the inclusion of males who identify as transgender into girls’ sports without regard to male-linked physical traits that justify excluding other males from female sport on competitive fairness and safety grounds. A third group has adopted policies that allow males who identify as transgender to compete against females after taking testosterone-suppression medications for a specified period. And some states have no policies one way or the other regarding gender identity and sport.
Pending Legal Challenges
None of the policies mentioned has been immune from a legal challenge. In Connecticut, one of the states that allows males who identify as transgender to compete in girls’ sports without regard to whether they have experienced male puberty or are on testosterone-suppression medications, four female athletes and their mothers sued their state high school athletic association. They contended that Connecticut’s rule, which ignores biological sex and focuses on gender identity, deprived them of school and state records they would otherwise have held, and from advancing in competitions, including qualifying for state and regional championships and becoming state champions — spots they would otherwise have won. Instead, the rule allowed two males who identify as transgender to dominate their events. The Department of Education under the Trump administration concluded that the state’s policy regarding transgender athletes violates Title IX’s mandate of equal opportunity for both sexes since biological males are able to win in both the male and the female divisions. The Biden administration is considering a reversal of that position, one that mandates transgender participation except under certain conditions. At the other end of the country and the political spectrum, Idaho has seen a similar legal battle erupt after it adopted a law mandating that athletic eligibility be based only on birth sex. To date there has been no approach that would include males who identify as transgender in women’s sports while preserving competitive opportunities for females.
The Cultural Battle Outside of the Courts Has Not Allowed for Respectful Dialogue on Science, Policy, and Best Practices.
The conflicting laws, legal positions, and philosphical stances have sparked a rhetorical battle about who will suffer more harm: males who identify as transgender who are prevented from competing as girls, or females who are forced to compete against athletes who have the very male sex-linked advantages that girls’ and women’s sport was designed to exclude. Throughout, surveys consistently show that Americans want girls’ and women’s sports opportunities for females only. Only a minority of Americans — just 29% according to one recent survey — favor allowing transgender students to participate on the sports team consistent with their gender identity.
Conflicting Federal Legislative Proposals Take an “Either / Or” Approach.
Various bills in the 117th and 118th Congress would either require identical treatment — with no distinctions allowed between — female students and males who identify as transgender (117th Congress – H.R. 5 – The Equality Act) — or would preclude all males who identify as transgender from participating in girls’/women’s sports, which would be restricted to females (118th Congress H.R. 426 734, which passed in the House but not the Senate, and S. 251).
The Supreme Court in Bostock Did not Resolve the Question of Separate Sex Sport.
Males who identify as transgender and their advocates argue that the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S.___, 140 S. Ct 1731(2020), mandates the unconditional inclusion of males who identify as transgender in women’s sports. This is misleading at best, as Bostock was about workplace discrimination under Title VII, not about sex segregation in competitive sport. In its decision, the Court expressly stated it was defining “sex” to mean “biological sex” not “gender identity”; and it expressly reserved for another day – did not decide – the issue of whether distinctions on the basis of sex are permissible for bathrooms, locker rooms, and sport.