Title IX Champions and Challengers

A young woman does hurdling training for her track competition training. Captured mid- jump. Horizontal image with copy space.

Any woman who remotely likes sports knows about Title IX. It protects female students from sex discrimination — not just in sports, although that’s probably what it’s most famous for. And yet, it seems as of late that when Title IX is in the news, it comes with controversy. Cases in lower circuit courts are quickly approaching SCOTUS to determine the limits of the Education Amendments of 1972.

In 2016, the Obama administration released guidance documents prohibiting discrimination based on gender identity under Title IX and that, “the Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.

In early December, Democratic Representative Tulsi Gabbard introduced a bill that would explicitly tie Title IX protections for female athletes to biological sex, at a time when the definition of sex and sex discrimination has been under review (see the June SCOTUS decision aroune Title VII of the Civil Rights Act). 

Tulsi faced backlash for her bipartisan bill, as many activists and mediaites claim that biological sex cannot be easily determined or defined, and that only gender identity is relevant in determining one’s biological sex.

The bill, called the Protect Women’s Sports Act, calls for Title IX compliance to be “determined on the basis of biological sex as determined at birth by a physician.” Title IX already forbids sex-based discrimination in any school receiving federal funds, so what does Gabbard’s bill intend to change?

Gabbard states that Title IX’s protections led to “a generational shift that impacted countless women, creating life-changing opportunities for girls and women that never existed before.” She also mentions that the law is being misinterpreted, causing it to be weakened. “Title IX’s original intent was based on the general biological distinction between men and women athletes based on sex.” She hopes the bill will allow female athletes to compete fairly. Listen to her talk about the bill herself:

Title IX ensured that women and girls would have sports programs in schools and colleges. Historically, women have been denied opportunities in sports based on our sex. Innate biological differences between men and women mean we compete differently. But institutions receiving federal funding can’t invest resources in men’s sports to the exclusion of women’s sports, just because of these competitive differences.

Lower courts have been challenging the definition of sex itself, to determine if trans-identified students will be accommodated based on their sex or their gender identity.

Idaho’s Fairness in Women’s Sports Act was the first of its kind. Signed in March of this year, it said that eligibility for sports participation would be determined by sex, not gender identity. Then in August, federal judge David Nye issued a preliminary injunction against this law, writing that the argument “other transgender women are not excluded from school sports because they can simply play on the men’s team is analogous to claiming homosexual individuals are not prevented from marrying under statutes preventing same-sex marriage because lesbians and gays could marry someone of a different sex.” 

This logic refers to SCOTUS’ Title VII decisions, which determined that discrimination against gays and lesbians constitute sex discrimination.

Across the country in Connecticut, the families of three female high school runners filed a federal lawsuit in February of this year. The lawsuit was filed against the Connecticut Association of Schools and the Connecticut Interscholastic Athletic Conference. The claim was that by allowing biological males to compete as girls created unfair physical advantages, depriving girls of opportunities. The US Department of Education agreed, saying, “athletic benefits and opportunities, including advancing to the finals in events, higher level competitions, awards, medals, recognition, and the possibility of greater visibility to colleges and other benefits” were at stake for the female students.

Amidst the controversy around Title IX, both the legal challenges around it and Gabbard’s proposed bill, pro athletes who benefited from Title IX when they were in school are now weighing in.

A little over a week after the bill was introduced, several high profile individuals in women’s sports including Billie Jean King, Megan Rapinoe, and Katie Sowers, signed a brief challenging the Idaho law banning transgender athletes from women’s sports.

The brief, filed by Lambda Legal, can be read in it’s entirety here. To sum it up, these athletes believe that trans-identified students should compete with girls.

If that sounds a tad bit contradictory to you, it’s because it is. How do you advocate for the importance of women and girl’s opportunities by calling for the inclusion of men and boys in their spaces? How do you advocate for equal pay for women in sports, as Megan Rapinoe has done tirelessly, and then argue that women’s sports should not be a protected category? Many of the athletes who signed this brief will likely never experience playing with or against men, as they’ve already left high school and college sports.

That’s not to say there are not examples of gender identity trumping sex when it comes to pro-level sports. Roller derby, rugby, MMA and other sports leagues allow transwomen to compete as women. The Olympic committee currently allows transwomen to compete as women if their blood testosterone levels are below 5 nanomoles for at least 12 months. While the average testosterone level for women is 1.12-1.7 nanomoles, many elite female athletes do have higher levels. Yet even with suppressed testosterone levels, trans-identified male athletes still benefit from greater muscle mass, larger hearts and lungs, and enhanced muscle memory.

One extreme case of what happens when trans-identified male athletes are allowed to compete with women is the infamous case of transgender fighter Fallon Fox. Fox’s opponent, Tamikka Brents suffered a concussion during the fight. But, Fox continued until Brents was TKO’d. Brents suffered fractures to her skull and orbital bone. Brents went on to say, “I have struggled with many women and I have never felt the strength I felt in a fight like that night. I can’t answer whether it’s because she was born a man or not because I’m not a doctor. I can only say that I have never felt so dominated in my life and that I am an abnormally strong woman in my own right. I still disagree with Fox’s struggle. Any other job or career that I say I try, but when it comes to a combat sport I don’t think it’s fair.”

But Fox also had something to say about the fight, “For the record, I knocked two out. One woman’s skull was fractured, the other not. And just so you know, I enjoyed it. See, I love smacking up [TERFs] in the cage who talk transphobic nonsense. It’s bliss! Don’t be mad.”

The tweet was then removed from Twitter for violating guidelines. Fox also took shots at another female fighter, Ronda Rousey. Rousey is perhaps one of the most decorated and experienced female fighters in the business. And she states she would not fight Fox because of the unfair advantage of Fox’s male physiology. Why would anyone disagree with an expert in her field? Especially when it comes to her own safety. Fox once again took to Twitter.

The distinctions between male and female are most important in contact sports like MMA. We’ve seen what can happen when trans-identified men are allowed to compete with women. But what about contact sports like rugby? Well, just this year World Rugby became the first international sports governing body to institute a ban on trans-identified male athletes competing in global competitions such as the Women’s Rugby World Cup. The ruling comes after nine months of review. World Rugby states that in a collision sport such as rugby, “safety and fairness cannot presently be assured for women competing against trans-women [sic] in contact rugby.” Transmen however, are allowed to play on men’s teams provided they have undergone a physical proving they are fit to play and after they have signed a waiver.

In all of these debates, whether in lawsuits brought by the schoolboard, by international sports federations, or in the public jury called Twitter, there is little to no mention of transmen wanting to compete in men’s sports. There’s no talk at all of how something like this would impact men’s sports (could it be because there’s little chance of trans-identified females joining elite men’s teams?). Even with higher blood testosterone levels, transmen will not have had the benefit of male puberty. A good example of this is trans-identified female professional athlete, Quinn of the Canadian national women’s soccer team, who will not compete on the men’s side as the midfielder and has no plans to use testosterone or medically transition.

We’re standing in the middle of a battle over the meaning of sex and the outcome will determine fairness and participation in sports for both students and professionals. A lot of liberals, whether celebrity sports stars or lawmakers, have decided that defending women and girls is bigoted against transwomen. Not only have they decided that it’s bigoted, they’ve also decided that it automatically disqualifies you from being a Democrat. Sarah McBride, the first transwoman to be elected to the Delaware State Senate, tweeted that Gabbard was assigned Republican at birth.

Is Gabbard’s bill doomed? Could she afford to support this legislation only because she did not seek reelection?

Many say the bill has little chance to pass. But should it? There are a few things to consider. A recent study in the journal Sports Medicine found that testosterone blockers make little difference in transgender athletes. The study states that “evidence shows the biological advantage, most notably in terms of muscle mass and strength, conferred by male puberty and those enjoyed by most transgender women is only minimally reduced when testosterone is suppressed as per current sporting guidelines for transgender athletes.” 

We have to ask ourselves why sports were segregated by sex in the first place. Is it because there are physiological differences between men and women that make competition unfair? Because if you don’t believe sports are segregated because of biological differences, you’re essentially saying women just don’t try hard enough and that’s why they can’t play against men or on men’s teams.

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