The Issue

Girls’/Women’s Competitive Sport Needs Safeguards and Trans Girls/Women Need to be Included with Appropriate Conditions.

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 sports were not sex-segregated, female athletes would rarely be seen in finals or on victory podiums. 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; the confidence and self-esteem that flows from competent performance of physical skills; the life-changing power of competing against the best and standing on the podium; confidence borne of testing the limits of strength, speed, skill and reaction time; and the power of personal achievement and public recognition when setting school, meet and other records. 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 is clear that Congress also understood that even when height, size, and weight are equal, males are incrementally stronger and generate more explosive force, so that if males and females are forced to compete against each other, the physical safety of females is differently at risk. 

At the time Title IX’s athletics regulations were passed, no one raised the issues of gender identity apart from biological sex, or whether trans girls/women with the post-pubescent advantages of biological males should be allowed to participate in the space created by Congress to secure the sport experiences of biological females. Today, however, trans girls/women are asking for the right to compete in girls’ and women’s sport, directly against female athletes, even when they retain some or all of their male sex-linked strength, power, and related performance advantages. For many people, the issue is not whether trans girls/women should be included in women’s sport. Rather, it is whether female athletes can continue to be safeguarded and trans girls/women included within women’s sports consistent with their gender identity.

States are Passing Conflicting Laws.

States have taken one of three general approaches to the issue of trans-inclusion in girls’ and women’s sport. Ten states expressly require males and females to participate in high school sports according to their birth sex, thereby prohibiting participation in girls’ sports by trans girls, whether or not they have begun male puberty or have had hormone therapy. In contrast, seventeen states and the District of Columbia expressly require the inclusion of trans girls in girls’ sports without regard to the extent to which they may retain the male-linked physical traits that otherwise justify excluding males from female sport on competitive fairness and safety grounds. Another seventeen states have adopted a policy similar to the NCAA rule, which allows trans girls to compete after taking gender-affirming hormones for a year. Finally, six states have no policy 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 trans girls to compete in girls’ sports without regard to whether they have experienced male puberty or are on gender affirming hormones, four female athletes – cis girls – and their mothers have sued their state high school athletic association. They contend that Connecticut’s rule, which ignores biological sex and focuses on gender identity, has 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 has allowed two trans girls to dominate their events. The Department of Education has 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. 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 trans girls/women 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. 

Transgender advocates accuse female athletes, their parents, and supporters of transphobia simply because they recognize the significance of sex in sport. Others seek unnecessarily to exclude all trans girls from all girls’ sports regardless of whether they have experienced male puberty or are undergoing gender-affirming therapies. The conflicting positions have sparked a rhetorical battle about who will suffer more harm: trans girls who are prevented from competing as girls, or females who are forced to compete against athletes who have the male sex-linked advantages girls’ and women’s sport was designed to exclude. Throughout, surveys consistently show Americans want sports opportunities for girls and women. 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 116th Congress would either require identical treatment of – no distinctions allowed between – females and trans girls (H.R. 5 – The Equality Act), or they would preclude all trans girls/women from participating in girl’s/women’s sports, which would be restricted to biological females (H.R. 5603, H.R. 8932 and S. 4649). 

The Supreme Court in Bostock did not Resolve the Question of Separate Sex Sport.

Trans girls/women 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 trans girls/women 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 whether distinctions on the basis of sex are permissible for bathrooms, locker rooms, and sport.