The Resolution

It is essential that we continue to safeguard girls’ and women’s sport. It is also good policy to be inclusive when doing so does not harm the female sports competition or the individuals separate sex sport is designed to protect. Congress and the Administration should make it clear that institutions governed by Title IX of the Education Amendments of 1972 (Title IX), the Ted Stevens Olympic and Amateur Sports Act (the Sports Act), and Title VII of the Civil Rights Act of 1964 (Title VII) will:

(1) continue to be obligated to provide males and females with equal sporting opportunities on the basis of biological sex, and

(2) be newly obligated to provide ways to include trans girls/women in girls’/women’s sports that ensure competitive fairness and playing-safety without diminishing the protection of biological females.

This two-step approach safeguards the integrity of the existing competitive sport process in which millions of girls and women participate annually. It also incrementally and thoughtfully expands the development of additional sports opportunities for emerging trans girls/women.

Separate sex sport has always been an exception to our general non-discrimination laws. This exception is justified by real physical sex-linked differences that emerge from the onset of male puberty and that have significant implications for athletic performance and playing-safety. The lawfulness of this long-standing exception should be re-affirmed.

At the same time, the government should make it legally possible for trans girls/women to participate in girls’/women’s sport in ways that do not affect competitive fairness and playing-safety. Because the onset of male puberty — normally around ages 11 – 12 in boys — is the physical justification for separate sex sport,[1] trans girls and women who have never experienced the onset of male puberty should be included without condition. Trans girls and women who have experienced the onset of male puberty should be included in ways that recognize their male sex-linked advantages in strength, power, and endurance. Some — but not all — trans girls and women are on gender-affirming hormones. Depending on the sport and the event, hormones may mitigate those advantages to some extent. However, the evidence is increasingly clear that hormones do not eliminate the legacy advantages associated with male physical development. Accommodations can and should take these legacy advantages into account.

Finally, it is important that there be national standards to ensure uniformity across the states. Competitive sport, i.e., sport that primarily focuses on adversarial engagement for places, prizes, and the win, and that leads to records, titles, championships, and ultimately to Team USA, is an interconnected system comprised of high schools, colleges, and universities, and non-school club teams and programs. The former are governed by Title IX. The latter are generally under the jurisdiction of, or sponsored by, the U.S. Olympic and Paralympic Committee (USOPC) and/or regional and national sport governing bodies (NGBs). This integrated system is only local in the first instance, as teams and athletes move from intra-state to interstate and international arenas as competition progresses. Inconsistent local, state, national, and international eligibility standards can create practical impediments to success for individual athletes, teams, and ultimately for the system as a whole.

The International Federations (IFs), whose singular responsibility is the management, promotion, and protection of their sport and its athletes throughout the world, are the most vested in and knowledgeable about the science, safety, and competitive fairness of any entity in their particular domain. They have already committed themselves both to safeguarding the female category and to scientific, evidence-based criteria for the conditional inclusion of trans girls/women in girls’/women’s sport. The resulting standards are reviewed on an ongoing basis to ensure they are consistent with sport’s policy goals and the best available scientific evidence on competitive fairness and safety. To date, no American sports organization or governing body has established a commitment to, or the capacity for, doing this work in a better way or at a higher level than the IFs. Adopting international standards for inclusion and accommodation would thus be a substantively sound and administratively efficient approach to national policy. Equally important is that pegging USA standards to international standards would ensure that our country’s athletes and teams — including our juniors who are Team USA’s future — can move seamlessly from domestic to international competition, and that none of our elite athletes are ineligible at the outset.

This proposal is designed for competitive girls’ and women’s sport, i.e., sport whose focus is adversarial engagement for places in rounds, finals, on podiums, and for the championship, and for the experiential, financial, and ancillary rewards that flow from success in this space. It is not designed for participation or recreational sport, i.e., sport whose focus is friendly play for social engagement, health, and welfare. Given its different focus and goals, eligibility standards for participation sport can and should be different from those of competitive sport.

The choice to peg eligibility to international rules is explained in the text immediately above the table. The current NCAA rule is superficially consistent with international rules; however, because the NCAA is not specific about the degree of mitigation required and does not monitor trans women for compliance, it is significantly flawed as administered. This problem is described below, in Q&A #26. The NCAA rule is noted here as an example of a domestic rule that, if properly administered, is a reasonable accommodation consistent with international rules.

Trans women/girls who are not on gender affirming hormones, i.e., who have full male advantage, or who have not mitigated their advantage at least to the point of meeting the international standard for their sport, should be fully included without condition on girls’ and women’s teams for all aspects of team activities except for competition itself and any aspects of practice that might implicate playing-safety. In high school, for example, the athlete would participate fully in the camaraderie and socialization associated with team membership. The only firm restriction is head-to-head competition against females.

Respectful alternatives to head-to-head competition should be developed by the institution responsible for the competition and the athletes, who should be afforded flexibility to take into consideration the nature and requirements of the sport and event, the institution’s mission, administrative feasibility, and local conditions. Regardless, the goal of the accommodation should be to provide a competitive opportunity under the umbrella of girls’ and women’s sport. Examples of accommodations that might be adopted depending on the school, sport, and event, might include handicapping, multiple leagues, events, and/or podiums.

The effect of this approach will be that sometimes, a trans girl/woman not on hormones who chooses to compete in girls’/women’s sport won’t have a direct competitor. This is not a preferred, but also not an unusual situation. For example, sometimes a runner or relay team has to compete against the clock, and sometimes athletes in competitions sorted by weight classes lack an opponent and have to choose to win by forfeit or move up a weight class and compete with a disadvantage. Because this may not be comfortable for some trans athletes, the choice to compete in the boys’/men’s category or the girls’/women’s category should always be up to the individual based on their personal circumstances and preferences. Either way, they have a place in sport.

Under this proposal, females who identify as boys and men or as gender fluid are always eligible to compete in the girls’/women’s category so long as they are not on male gender affirming hormones. Sex-linked traits drive the conditions, not gender identity.

Some events are hybrids, involving both competition and participation, for example, the various mass participation events like road races, triathlons, cross country skiing events, and other similar competitions all over the country and the world, in which participants of all ages and abilities from rank beginners to Olympic Champions toe the line together. These events range in size from a few hundred to many thousands, and while for the great majority of the participants the goal is to get a finisher medal and perhaps a personal best, for some the goal is an overall award or an age-group or other category award, which could be anything from a trophy to thousands of dollars. With virtually no exceptions, these events are conducted under the aegis of and sanctioned by the sport’s NGB, and as such are subject to their eligibility rules and thus those of the IF. As both a participatory and a competitive event, any transgender athlete would be welcome to participate without any mitigation at all, but if they want to compete for and accept any prizes, they must meet / comply with the NGB’s and IF’s mitigation requirements for that sport.

[1] Endocrinologists explain that puberty in boys should start between ages 9-13 and in girls between ages 8-12; that puberty usually takes 4-5 years to complete so that 95% of boys will have started puberty by age 13. This timing is consistent with the formal position of the Women’s Sports Foundation providing that “[p]rior to puberty, females and males should compete with and against each other on coeducational teams.” Women’s Sports Foundation, Issues Related To Girls and Boys Competing With And Against Each Other In Sports And Physical Activity Settings at 1 (Aug. 14, 2019) (adding that “prior to puberty, there is no gender-based physiological reason to separate females and males in sports competition”), available at https://www.womenssportsfoundation.org/advocacy/girls-and-boys-competing-with-and-against-each-other-in-sports-and-physical-activity-settings/.

Model Statutory And Regulatory Language To Safeguard Women’s Sports & Include Trans Athletes

The best way to resolve the issue of safeguarding opportunities for females within girls’ and women’s sport while including trans athletes is to enact standalone federal legislation. This approach would ensure clarity and consistency in the law’s treatment of the issue by the federal government, the states, and sport governing bodies. The model language immediately below is thus for a standalone federal statute. Following that is language to amend the Title IX regulations governing separate sex sport, 34 C.F.R. § 106.41, and the Equality Act, in the event lawmakers prefer one or both alternative approaches. All three options are based in and compatible with the Title IX regulations. Approaching law reform related to girls’/women’s competitive sport in this way ensures that the extensive web of related statutory, administrative, and case law that exists in this area is not unnecessarily voided by our proposed trans-inclusive law reform measures.

PROPOSED STANDALONE STATUTE

Schools receiving federal funds and sport governing bodies engaged in interstate commerce [covered entities][1] may operate or sponsor separate competitive sports teams and events based on biological sex[2] where group-based sex-linked traits affect playing-safety and competitive capacity.

(A) Covered entities shall provide equal athletic opportunities, treatment, services and benefits in kind, quality and availability to male and female athletes.[3]

(B) Covered entities may restrict eligibility for the female sport category only to females if any male sex-based differences would have a negative impact on the right of females to achieve equality of athletic opportunity.[4]

    (1) With respect to competitive opportunities, if a covered entity provides male athletes and teams the opportunity to advance to invitational, conference, state, regional, national, and international competition in the boys’ and men’s division, it must provide a parallel opportunity to female athletes similarly to advance in the girls’ and women’s division.[5]

(C) Covered entities that operate or sponsor separate-sex teams and offer a team in a particular sport for members of one sex but operate or sponsor no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered except if the sport involved is a contact sport and the position at issue implicates playing-safety because of sex-linked differences in size, weight, strength, or explosive force. Covered entities may, but are not required, to prohibit members of the excluded sex from trying out for such positions. For the purposes of this part, contact sports include but are not limited to boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.[6]

(D) Treatment of Transgender Athletes

Where a covered entity operates or sponsors separate sex teams and events, transgender athletes shall be accommodated as follows:

    (1) Treatment of Transgender Boys and Men

        (a) Trans boys/men who have not taken gender-affirming hormones may be included in girls’ and women’s sport or they may compete in boys’ and men’s sport consistent with (C), the contact sport exception.

            (b) Trans boys/men who have begun taking gender-affirming hormones

                (i) may compete in boys’ and men’s sport consistent with (C)(the contact sport exception), but

                (ii) may not compete head-to-head against female athletes in girls’ and women’s sport.

    (2) Treatment of Transgender Girls and Women

        (a) Trans girls/women who have not begun male puberty do not have significant male sex-linked advantages; they shall be included in girls’ and women’s sport without conditions or limitations.

        (b) Trans girls/women who have experienced all or part of male puberty and who have sufficiently mitigated their male sex-linked advantages through surgery and/or gender affirming hormones consistent with the rules of their sport’s international federations, may participate in girls’/women’s sport without further conditions or limitations.

        (c) Trans girls/women who have experienced all or part of male puberty and who have not at all, or only partially, mitigated their male sex-linked advantages according to the international federation standards in their sport may be included in girls’/women’s sport but not in head-to-head competition against female athletes.[7]

(E) The private medical information (PMI) necessary to determine an athlete’s eligibility must be available to the relevant sports authority. The information, which shall be kept confidential, is strictly limited to confirmation of the athlete’s biological sex and of their hormone status over the relevant period of time.[8] All challenges to an athlete’s eligibility shall be resolved by the relevant sports authority based on this confirmation.[9]

(F) Policy, training and competition must encourage a safe, respectful, and affirming environment for all athletes.[10]

(G) This statute only applies to competitive sport, when the principal objective is to win individual or team championships, titles, medals, or prize money. It does not apply to recreational sport such as physical education classes or intramural events, the principal objective of which is to participate for health and enjoyment.


[1] Schools receiving federal funds are subject to Title IX of the Education Amendments of 1972. Sports governing bodies include public and private non-profit high school and age-group athletic associations, intercollegiate athletic associations, the U.S. Olympic and Paralympic Committee, and their member National Governing Bodies. These organizations may be subject to Title IX and/or the Ted Stevens Olympic and Amateur Sports Act.

[2] See National Institutes of Health (NIH), Office of Research on Women’s Health, Sex & Gender, https://orwh.od.nih.gov/sex-gender, last accessed on January 1, 2021 (explaining that “‘[s]ex’ refers to biological differences between females and males, including chromosomes, sex organs, and endogenous hormonal profiles. ‘Gender’ refers to socially constructed and enacted roles and behaviors which occur in a historical and cultural context and vary across societies and over time.”)

[3] U.S. Department of Education, Office for Civil Rights, Title IX 1979 Policy Interpretation, available at http://www.ed.gov/offices/OCR/docs/t9interp.html.

[4] See McCormick v. School District of Mamaroneck, 370 F.3d 275 (2nd Cir. 2004) (holding that recipients must provide girls with equal opportunities to compete in championship games.); U.S. Department of Education, Office for Civil Rights, Title IX 1979 Policy Interpretation, available at http://www.ed.gov/offices/OCR/docs/t9interp.html.

[5] Id.

[6] This provision would re-codify the contact sports exception in the Title IX Regulation, 34 C.F.R. § 106.41(b).

[7] Head-to-head competition is when two or more athletes compete directly against one another other, for example in the same heat in the pool or on the track, or on the same court in basketball and volleyball. Trans girls/women who have not at all, or only partially, mitigated their male sex-linked advantages who want to be included under the girls’/women’s sport umbrella must be accommodated by means that do not involve head-to-head competition. Acceptable accommodations should be developed by sports administrators who are experts in the affected sports and events, but they need not reinvent the wheel. Existing models for co-ed sport and weight and age divisions can be borrowed for this purpose. Examples of acceptable accommodations might include separate events, heats, divisions, or handicapping that permits separate scoring, separate teams, or separate recognition.

[8] This information should be included on the standard pre-season physical eligibility form that is completed and signed by the athlete’s physician. The form should include the following questions for the physician to answer: whether the athlete is or is not transgender; if they are, whether they are or are not on puberty blockers and/or gender affirming hormones; and if they are, the dates of treatment and testosterone levels they have maintained during the relevant period.

[9] Assuming the relevant sports authority has confirmed the athlete’s eligibility according to the relevant rule, no challenge to their inclusion should be entertained in the absence of admissible evidence of fraud.

[10] In addition to educational programs to ensure a respectful environment, sport governance organizations should adopt and implement policies specifying that any challenge to the eligibility of an athlete shall be to a specified official of the relevant sports authority by confidential email, such query or complaint and reply thereto also subject to (D) above.

PROPOSED AMENDMENT TO THE EQUALITY ACT (H.R. 5 – 2019)

Amend SEC. 9. MISCELLANEOUS. as follows:

Within Section 1101. DEFINITIONS AND RULES., by inserting

“(4) SEX.—The term ‘sex’ includes—

    “(A) biological sex, including the sex characteristics that account for the physical and physiological differences between males and females;[1]

    “(B) sex stereotype;

     “(C) pregnancy, childbirth, or a related medical condition;

    “(D) sexual orientation; and

     “(E) gender identity.; and

    “(D) sex characteristics, including intersex traits.[2]

“Section 1106. RULES OF CONSTRUCTION.

     “(A) Sex – Nothing in section 1101 or the provisions of a covered title incorporating a term defined or a rule specified in the section shall be construed –

         “(1) To limit the protection against an unlawful practice on the basis of pregnancy, childbirth, or a related medical condition provided by section 701(k), or

        “(2) To limit the obligation of programs and institutions covered by Title IX of the Education Amendments of 1972, the Ted Stevens Olympic and Amateur Sport Act, and Title VII of the Civil Rights Act of 1964 to provide separate opportunities on the basis of biological sex when this is necessary to protect the right of biological females to equality in competitive athletics, or

        “(2)(3) To limit the protection against an unlawful practice on the basis of sex available under any provision of Federal law other than that covered title, prohibiting a practice on the basis of sex.”

PROPOSED AMENDMENT TO THE TITLE IX REGULATIONS (34 C.F.R. § 106.41)

     (a) General. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.

     (b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams based on biological sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors separate-sex teams and offers a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered, except if the sport involved is a contact sport and the position at issue implicates physical playing-safety because of sex-linked differences in size, weight, strength, and explosive force.[3] A recipient may, but is not required to, prohibit members of the excluded sex from trying out for such positions. For the purposes of this part, contact sports include but are not limited to boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.

        (c) Treatment of Transgender Athletes.

            (1) Because trans girls/women who have not begun male puberty do not have significant male sex-linked advantages, they shall be included in girls’ and women’s sport without conditions or limitations.

            (2) Trans boys/men who have not taken gender-affirming hormones may be included in girls’ and women’s sport without conditions or limitations.

            (3) Trans girls/women who have experienced all or part of male puberty and who have sufficiently mitigated their male sex-linked advantages through surgery and/or gender affirming hormones consistent with the rules of their international federations may participate in girls’/women’s sport without additional conditions or limitations.

            (4) Trans girls/women who have experienced all or part of male puberty and who have not, or only insufficiently, mitigated their male sex-linked advantages according to the international federation standards in their sport may be accommodated within girls’/women’s sports but not in head-to-head competition with female athletes.

            (5) The private medical information (PMI) necessary to determine an athlete’s eligibility must be available to the relevant sports authority. The information, which shall be kept confidential, is strictly limited to confirmation of the athlete’s biological sex and of their hormone status over the relevant period of time.[4] All challenges to an athlete’s eligibility shall be resolved by the relevant sports authority based on this confirmation.[5]

            (6) Policy and training should encourage a safe, respectful, and affirming environment for all women and girls.[6]


[1] See National Institutes of Health (NIH), Office of Research on Women’s Health, Sex & Gender, https://orwh.od.nih.gov/sex-gender, last accessed on January 1, 2021 (explaining that “‘[s]ex’ refers to biological differences between females and males, including chromosomes, sex organs, and endogenous hormonal profiles. ‘Gender’ refers to socially constructed and enacted roles and behaviors which occur in a historical and cultural context and vary across societies and over time.”)

[2] “Sex characteristics” as a term and category includes intersex traits, which appears in Section (4) (A) above.

[3] Because the contact sport exception is permissive not mandatory, schools may allow girls/women to try out for positions on their boys’/men’s contact sports teams. This is least controversial when the position at issue – as opposed to the sport in general – does not involve a high risk of significant physical impact. See, e.g., Vanderbilt kicker Sarah Fuller first woman to score in Power 5 football game, ESPN News Service, December 12, 2020.

[4] This information should be included on the standard pre-season physical eligibility form that is completed and signed by the athlete’s physician. The form should include the following questions for the physician: whether the athlete is or is not transgender; if they are, whether they are or are not on puberty blockers and/or gender affirming hormones; and if they are, the dates of treatment and testosterone levels they have maintained during the relevant period.

[5] Assuming the relevant sports authority has confirmed the athlete’s eligibility according to the relevant rule, no challenge to their inclusion should be entertained in the absence of admissible evidence of fraud.

[6] In addition to educational programs to ensure a respectful environment, sport governance organizations should adopt and implement policies specifying that any challenge to the eligibility of an athlete shall be to a specified official of the relevant sports authority by confidential email, such query or complaint and reply thereto also subject to (D) above.