In June of 2020, the Supreme Court wrote for its majority opinion in Bostock v. Clayton County that Title IX’s prohibition against “discrimination on the basis of sex” covers “sexual orientation and gender identity.” On January 20, 2021, President Biden signed an executive order promising to combat discrimination on the basis of gender identity or sexual orientation, leaving agencies a mere 100 days to ensure that their policies prevent such. While Democratic politicians and transgender activists are celebrating, it is likely that young women and girls, especially those participating in competitive sports, will become guinea pigs for the new administration’s social experiment.
It’s a Dangerous Game
On January 26, sports writer Mike DiMauro of The Day published an article with the headline “Biden’s new mandate on transgender athletes swings and misses.” Aside the fact that the order sets “no specific guidelines governing the participation of transgender athletes,” he recognizes the inherent risk of allowing biological males who identify as women to participate in women’s sports:
“The Biden Administration plays a dangerous game here. They bear responsibility to all citizens. This mandate imperils girls and women in a time when the women’s sports revolution is among the country’s greatest athletic distinctions.”
Lurking behind DiMauro’s question of whether one could devise a “new, sports-centric law” that “defers to science” on the matter of transgender participation is the disastrous logic of Bostock. By confusing discrimination on the basis of sex with discrimination on the basis of gender identity, DiMauro is in a double bind: either sacrifice the science of sex differences on the altar of gender identity, or turn away transgender athletes who cannot “prove” by way of science that they are sufficiently female to compete.
Whose Harm Is It?
Former women’s NCAA track champion and Duke University School of Law professor Doriane Coleman also made the claim that transgender bans are not the answer, since it is possible for transgender women to lose the “male sex-linked advantages that matter for sport” after sufficient hormone therapy. She states that “trans advocates who argue that Title IX requires us to recognize that “transgirls are girls” in all circumstances are misstating the law. But the law doesn’t condone unnecessary harm and neither should policymakers.” However, the notion that hormone suppression can truly overcome the vast difference in performance between men and women has been challenged by a recent study in the British Journal of Sports Medicine, which found that trans women retain an edge even after a full year of hormone therapy. Furthermore, women stand to lose more than to gain from the “unnecessary harm” that they, their coaches, sports associations, or states may allegedly commit. Women and girls will be the ones to suffer – just how many severe physical injuries will occur for females competing against biological males is just one facet of the experiment.
No Basis for Separation
The entire basis of separate facilities for the benefit of women’s performance, privacy, and safety has been called into question in just a year and a half, with massive ramifications for public and private aspects of schooling. A girl or young woman’s natural and utterly sensible concerns regarding privacy and modesty are apt to be mocked as it is, given the highly sexualized nature of our public life. But for her to be pressured to accept new conditions in which she is to dress, undress, and relieve herself under threat of accusations of discrimination completely undermines her dignity and undoes years of progress. Conforming an entirely female space in order to suit an individuals’s preferred self-identification flies in the face of what it means to create competitive teams and facilities based on biological sex. Bathrooms, locker rooms, and female group activities were legally provided for the sake of females, not for those who simply believe they are female. Pretending that they are sends a clear message to those who are naturally-born female: your concerns, dreams, and aspirations are second to state-enforced ideology.
