The Women’s Sports Policy Working Group (WSPWG) and Champion Women strongly oppose both the Biden administration’s and the twenty State Attorneys General’s positions regarding any state or federal laws, proposed legislation, or Department of Education regulations that would unconditionally include or exclude transgender students from participating in sports. Instead, we advocate for restricting female sports competition to female athletes while creating equitable and inclusive accommodations for athletes who were born male and identify as women.
A Note About Terminology
In this document, the phrase female athlete refers to a competitor who is biologically female and has therefore not experienced male puberty. The phrase male athlete refers to athletes who are biologically male and have experienced male puberty.
The Biden Administration’s Executive Order Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation would equate the word sex, as written in Title IX and elsewhere, with gender identity. This change threatens the integrity of female sports competition by requiring identical treatment of females and male-born athletes who identify as women – effectively declaring male bodies eligible to compete head-to-head against female bodies. This change would result in unconditional inclusion of male-born athletes into girls’ and women’s sports. Temporarily blocked by a federal district court judge for the Eastern District of Tennessee in July, the order would undermine a foundational and decades-old principle: that, because women’s bodies are fundamentally different from men’s in ways that impact sports performance, females are entitled to compete in their own sport category. The judge also issued a preliminary injunction against the Biden administration, stopping them from issuing directives that would compromise Title IX as it applies to women’s sports.
At the other end of the inclusion/exclusion spectrum, twenty State Attorneys General brought a legal action against Department of Education (DOE) Secretary Miguel Cardona, asserting states’ rights to adopt laws that prohibit biological males from participating in women’s sports programs and prohibiting biological women on testosterone from competing in men’s sports programs. Many of the states represented had already adopted such laws.
Total Inclusion and Total Exclusion Miss the Mark
The Biden administration and the twenty Attorneys General are wrong. Total inclusion and total exclusion both miss the mark. Women’s sports programs can offer equitable and inclusive accommodations to people born male who identify as women without compromising the programs’ core rationale: that female and male athletes have fundamentally different bodies, and in competitive sports, those differences matter.
Competitive Sport Categories
Competition within sport is segmented to accomplish the primary purpose: physically fair competition between equally matched opponents. Categories increase the number of people who can benefit from the value proposition of competitive sports (e.g., confidence, teamwork, competitiveness, camaraderie, fitness, etc.)
Competitive categories (such as the female category – and male and female categories for athletes with a variety of disabilities) are created for large populations who would otherwise be significantly disadvantaged if competing against the dominant male category. These categories allow more people to experience competitive sport — including victory — by restricting eligibility to those who are similarly disadvantaged.
Competitive Sport Classes
Within each of these categories, there are sometimes classesbased on physical attributes (such as weight classes in wrestling, weightlifting, boxing, and crew) or skill/experience attributes (such as age groups, junior varsity, professional, amateur, paraplegic, quadriplegic, Division I, II, and III, etc.) for the purpose of further expanding opportunities for participation and success among physically similar groups.
Title IX and the Americans with Disabilities Act
Title IX, signed into law in 1972, created the female category when it allowed separate-sex sport as an exception to sex-discrimination law. The Americans with Disabilities Act created categories requiring accommodations for athletes with disabilities of many types.
Historically, Title IX’s text and regulations prohibiting sex discrimination were understood to refer to biological sex. Since 1975, Title IX regulations explicitly allow for separate male and female sports “where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” 34 C.F.R. § 106.41(b).
Females need their own protected category because from the onset of male puberty, males as a group become irreversibly faster, stronger, and more powerful than females as a group. Natural testosterone infusions that begin at male puberty result in male-female sport-performance gaps that typically range from 8-20 percent, but up to 50 percent depending on the sport and event. Males’ physical and physiological advantages (e.g., males develop longer and denser bones, more muscle mass, greater lung capacity, larger hearts, etc.) persist in the bodies of transgender athletes who were born male – even after hormonal or surgical treatments – and represent the legal justification for separate biological-sex sport competition.
But these irreversible biological differences do not mean that transgender athletes must be excluded from sports programs consistent with their identities. To ensure fairness for female athletes, athletes who were born male but now identify as women just need to be provided with equitable accommodations that do not include head-to-head competitions against female athletes.
Why Equity and Not Identical Treatment?
Title IX requires schools to provide males and females with equitable but not necessarily identical treatment. For example, schools are not required to provide their female students with football. Schools can choose different sports for male and female students so long as females and males have equitable experiences in number and quality. Events within sports need not be identical either. Women’s events feature lower hurdles and volleyball nets and smaller basketballs, for example, and some different gymnastics events –- but these are considered equitable offerings.
In keeping with this same principle, trans athlete inclusion should feature new competitive categories that would permit trans participation consistent with their gender identities – and which would provide them with equitable treatment. In some events, such as the high jump or shot put, this equitable accommodation would enable the athlete who was born male and identifies as a woman to compete alongside female competitors – with separate scoring: one for the female category and one for a new transgender category. Elsewhere, there might be separate heats or events for female athletes and trans athletes. But importantly, both categories would exist within the women’s sports program so trans athletes could benefit from the social and developmental interactions of athletes with the same gender identities, if that’s what they prefer.
As for athletes who were born female and now identify as men: If they take testosterone, they become ineligible for the female category because testosterone provides an unfair and illegal advantage. Testosterone supplements represent doping and are universally considered to be cheating. However, if a female-born athlete who identifies as a man takes testosterone under medical supervision and wants to compete in the men’s category (perhaps better described as an open category), he should be free to do so because no quantity of testosterone, whether natural or artificial, will result in a performance advantage for such a person when compared to biological men. If female-born athletes who do not take testosterone do not want to compete against women for reasons related to gender identity – but want a more equitable playing field – they, too, might compete in a new trans category within men’s sports programs.
A Call for Fairness, Equity, and Inclusion for All
We encourage legislators and sport policymakers to embrace this approach, which prioritizes science, provides for competitive opportunities for everyone, and preserves and prioritizes the right of female athletes to experience fair competitions. Relevant physical differences between female and male athletes must be acknowledged and accommodated so that sports remain fair, equitable, and inclusive for all.
Women’s Sports Policy Working Group
The Women’s Sports Policy Working Group isa bipartisan group of former elite athletes and sports administrators dedicated to restricting female sport competition to biological females — while providing athletes born male who identify as women, gender-fluid athletes, and nonbinary athletes with equitable and inclusive accommodations within women’s sports programs.
- Donna de Varona, OLY: Two-time Olympic gold medal swimmer; Title IX leader; Hall of Fame broadcaster; first president, Women’s Sports Foundation
- Martina Navratilova, OLY: Winner, 59 Grand Slam singles, doubles, and mixed doubles tennis titles, the most ever; first openly gay professional athlete; longtime LGBTQ rights advocate
- Nancy Hogshead-Makar, JD, OLY: Three-time Olympic gold medal swimmer; athletes’ rights activist; Past-President, Women’s Sports Foundation; CEO, Champion Women; member, U.S. Congress’ legislative oversight commission of the USOPC
- Donna Lopiano, PhD: Hall of Fame softball player; Title IX expert; women’s sports leader; former women’s athletics director, University of Texas; first CEO, Women’s Sports Foundation; CEO, the Drake Group
- Tracy Sundlun: Six-time Olympic track coach and manager; Founding Board member, National Scholastic Athletics Foundation; co-founder, Rock ‘n’ Roll Marathon Series; CEO, Everything Running
Champion Women is a non-profit organization that provides legal advocacy for girls and women in sports.