The issue of biologically male athletes competing in women’s sports as trans females tests the limits of progressive gender ideology which rejects the existence of innate differences between men and women. This belief assumes that observed differences are merely social constructs that, given the right social engineering, can be reversed.
Yet, testosterone exists as an inconvenient fact in this world. This all-natural hormone is the ultimate performance-enhancing drug for athletes. This reminds us that some differences are innate biological realities, not arbitrary cultural constructs. Testosterone helps explain why we don’t see biologically female athletes who identify as boys beating biological boys.
While the choice to identify as a different gender than one’s birth can go two ways, this issue of where trans athletes can compete is limited to just one. The policy question is: Where should trans females compete? If required to compete as males, it violates their identity. If allowed to compete with females, they possess an unfair advantage over female athletes.
This appears to present a discrimination dilemma, whatever policy choice is chosen. The ultimate legal question here is which choice constitutes a Title IX violation. That is the federal statute governing sex equality in education, which states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program receiving Federal financial assistance.” Both sides on this issue cite Title IX as mandating their position.
Part of this confusion comes from the way Title IX does two things at once. It simultaneously bans sex discrimination in education and mandates segregation on the basis of sex. We understand segregating sports on the basis of race to be a violation of Title VI’s ban on racial discrimination, but Title IX’s ban on sex discrimination has come to mandate segregation by sex, despite the fact that Title IX was modeled after Title VI.
Title IX has no explicit mandate for sex segregation in the statute, but administrative implementation has developed a de facto one. Administrative rules are the quasi-legislative process where the executive branch develops more detailed language to apply the broad language Congress has enacted. Then agencies issue guidance on how to follow them. In 1975, the then Department of Health, Education, and Welfare (HEW) produced rules for athletics 34 C.F.R § 106.41 which remains unchanged today. Section 106.41(a) actually says that a recipient of federal funds shall not provide athletics separately on the basis of sex. However, Section 106.41(b) qualifies that by stating recipients may provide separate sports teams if either (a) competitive skill is a criterion for selection or (b) the sport is a contact sport. Then subsection (c) requires “equal athletic opportunity for members of both sexes.” Four years later HEW issued a Policy Interpretation which contained a three-part test, identifying three ways schools could comply with the equal opportunity requirement: they could provide (1) “intercollegiate level participation opportunities” to men and women in proportion to the undergraduate population at the institution; (2) continuing expansion of athletics opportunities for the underrepresented sex; or (3) athletic opportunities completely satisfying the interests of the underrepresented sex. In 1996, the by then separate Department of Education issued a Clarification on the three-part test to determine whether “participation opportunities” are substantially proportionate to undergraduate enrollment under the first part of the test. The provision defines “participation opportunities” as “participants.” A sex-integrated sport would likely not have an equal number of female participants making the cut, so the only way to be in compliance is to segregate athletics by sex, separate but equal, as Plessy v Ferguson once described this arrangement.
Given that Title IX operates to protect female athletes from competing with males, letting a biologically male player dominate in female sports can reasonably be treated as a Title IX violation. Today, we commonly make a distinction between sex and gender, however, neither the statute nor its administrative implementation makes this distinction.
So, where is a trans female allowed to compete? There are not going to be enough such people to have a league of their own.
That question leads me to an obvious other question: Why are we segregating athletics by sex at all? The issue of trans rights turns what Title IX has become on its head, highlighting for me that there is no good reason to mandate two varsity teams. Having only one would be fairer. All people, both sexes, both genders, and any permutation of the two, should compete together.
We should stop trying to mandate equal outcomes in a space where the equality of ability and interest are innately different. Athletic competition, by its very nature, searches for the best players and the best team. It does not naturally distribute outcomes equally by our social categories.
My answer to the questions that trans athletes raise is to suggest we reform the implementation of Title IX back to its original language. Let’s stop trying to mandate equal outcomes for female athletes. Instead, we should grant all athletes equal opportunities to compete according to their abilities and interests. Rather than mock trans athletes for being different, for not fitting in, we should thank them for showing us the incoherence in which Title IX has been implemented.
Eric Shierman lives in Salem and is the author of We were winning when I was there.