ACLU joins lawsuit allowing biological males to compete in women’s sports

February 18, 2020 • 10:15 am

A few days ago, and previously as well, I discussed the difficult issue of transgender women seeking to compete in women’s sports. The thorny issue of “what do you do with males transitioning to the female gender?” or with those who have completed their transition, is often resolved by many with the simple Diktat: “Transgender women are women.” Well, when it comes to “transgender” women who have undergone no hormonal or medical therapy, but are simply biological men who have declared that they are women, the issue isn’t so simple, at least when it comes to sports.

Of course, as I’ve repeated endlessly, anybody who claims they’re a woman should be respected as such, and not discriminated against in nearly any way. But sports is an exception.

I won’t go into the issue of men who have had hormone therapy and the like, though many times they still retain the muscle- and bone-strength advantage that they had before transitioning. These cases, as well as the testosterone limit that can’t be exceeded to compete in Olympic women’s sports, are for other people to judge.

But there’s one kind of transsexual woman where the issue is dead easy to resolve: those women who are men and have simply declared that they’re woman but have undergone no medical intervention. In effect, they have the physiology, anatomy, and consequent sports abilities of men, and of course they’ll beat women in nearly every sport.  I can’t imagine any reasonable person who would say that it’s fair to allow such un-“altered” men  to compete with biological women.

Except that is, for the state of Connecticut. Oh, and the ACLU.

An article from CBS58 in Milwaukee (click on headline below), describes the recent lawsuit brought by three Connecticut high school girls, who are athletes, suing the state athletic organization’s policy of allowing transgender women to compete in women’s sports. Click on the screenshot to read the piece:

(From the website): High school track athletes Alanna Smith, left, Selina Soule, center and and Chelsea Mitchell prepare to speak at a news conference outside the Connecticut State Capitol in Hartford, Connecticut, on February 12.

From the article:

Selina Soule, Chelsea Mitchell, Alanna Smith and their mothers claim in their lawsuit the Connecticut Interscholastic Athletic Conference’s (CIAC) policy is a violation of the Title IX act — which bars discrimination on the basis of sex.

The policy, they say in the suit, results in “boys displacing girls in competitive track events in Connecticut.”

. . .In a statement earlier this week, the American Civil Liberties Union said it would seek to join the lawsuit to defend the interests of transgender student athletes.

“Efforts to undermine Title IX by claiming it doesn’t apply to a subset of girls will ultimately hurt all students and compromise the work of ending the long legacy of sex discrimination in sports,” Chase Strangio with the ACLU said in a statement.

The invidious thing about the ACLU’s statement, and the statement by the CIAC, is that one “subset of girls” includes biological boys who have undergone no medical transitions towards being girls. That, in turn, includes Terry Miller and Andraya Yearwood, who won places in the state track and field composition although both are untransformed biological males who claim that they are women.

And both Miller and Yearwood wrote sub-statements within the ACLU statement that are largely identical to each other (e.g. “I am a girl and a runner” vs. “I am a girl and I want to run”).  And both individuals, along with the ACLU, argue that they are being discriminated against because they are transgender women, lumping themselves in with those transgender women who have undergone surgery and/or hormone therapy.

But Miller and Yearwood aren’t the same as the others, for they have undergone no treatment that would make them even remotely biologically comparable to those who have undergone surgery or hormone therapy. They are simply untransformed males with a psychological claim about their identities, and they retain all the features, like bone structure and muscle mass, the give men and advantage over women in track and field. That, after all, is why they won the championships, and why this lawsuit is going forward.

The CBS58 article further states clearly that Connecticut’s policy—like that of 16 other states—is that “gender identity” can be acquired by self-identification alone, without medical intervention. These states have no restriction on who qualifies as a transgender athlete.

My emphasis in the statement below:

According to CIAC’s reference guide for its transgender policy, school districts should determine a student’s participation on sports teams based on the student’s gender identity and “daily life activities in the school and community at the time that sports eligibility is determined.”

Those rules, the guide says, are compliant both with state law and Title IX.

The guide outlines that in a 2019 consultation with the Office for Civil Rights, part of the US Department of Education, a federal compliance officer confirmed that Title IX “supports transgender athletic opportunities with the gender of which a person identifies.”

“(The compliance officer) further stated that such support does not require hormone therapy nor gender reassignment surgery,” the guide says.

That’s a recipe for disaster and, if taken literally—as is being done by both the ACLU and the state of Connecticut—would spell the end of women’s athletics in that state. I am not surprised that the three women who are suing are angry.

What angers me is that the ACLU, an organization that I long supported, is going with the pure “self-identification” aspect of male vs. female. In the ACLU’s statement, they say much about discrimination against transsexuals, and there is indeed reprehensible discrimination that is immoral, but they fail to address the issue of whether you can simply claim that you’re of one gender, and that such a claim alone qualifies you to compete in sport with other members of that gender.

Here’s part of the ACLU’s statement, which argues that the law supports inclusion, though it also leads to unfairness and, ultimately, exclusion of biological women who identify as women:

Statement from Chase Strangio, deputy director for Trans Justice with the ACLU LGBT & HIV Project:

“Today’s complaint filed in Connecticut targeting the inclusion of transgender girls in girls’ athletics and specifically naming Terry Miller and Andraya Yearwood is a dangerous distortion of both law and science in the service of excluding trans youth from public life. The purpose of high school athletics is to support inclusion, build social connection and teamwork, and help all students thrive and grow. Efforts to undermine Title IX by claiming it doesn’t apply to a subset of girls will ultimately hurt all students and compromise the work of ending the long legacy of sex discrimination in sports.

“Additionally, the language of the complaint, which deliberately misgenders transgender youth and demands that high school athletics be organized by chromosomes, is an assault on the basic dignity and humanity of transgender people and a threat to the privacy and equality of all students.”

Of course this all hinges on the question of “who is a woman and who is a man?”, a thorny issue for the courts that have to decide this. But if the courts come down to stating that “whoever claims they are a woman counts as a woman,” then that’s the end of women’s sports on the high school and college level.

It’s truly sad that the ACLU has chosen in this case to argue such a position—a position that, I think, no rational person interested in fairness could adhere to. Again, I refer to allowing medically untreated men who claim to be women to participate in women’s sports. The issue of how to deal with those who have undergone medical treatment is a different issue, and a harder one.

h/t: Gregory

65 thoughts on “ACLU joins lawsuit allowing biological males to compete in women’s sports

  1. Young women have lower car insurance rates (fewer crashes). Young men have lower medical insurance rates (fewer pregnancies.) Do I get to choose my gender every time I click the M/F box?

      1. Why? If gender is my decision, I can change my decision based on my mood.

        There is a person at my daughter school who identifies as a boy (with a male name) one day and a girl (with a female name) the next. The teachers are suppose to use the correct nom du jour.

    1. If you follow the reasoning that gender is entirely subjective, then you can theoretically change your gender any time you want. In that case, you might be non-binary. I think in my state,Vermont, non binary is an option when getting your driver’s license.

  2. I think if they win this thing in the state there will be Transgender sports and male sports but no female sports. Is that what the ACLU is fighting for? And then the legal mess will turn to fights within the transgender sports. Who does the ACLU back when that happens?

  3. If the ACLU and the CIAC prevail and this policy is widely instilled, my prediction is that many women’s competitions will become so farcical that it will cause the number of competitors to decline in all competitions, precisely the opposite of the goals of title IX. Why in the world would a young woman go through all the suffering and training for a sport knowing she stands little to no chance of winning.

    Alas, the Age of Reason has passed. I have little hope that this will end well.

  4. Many jurisdictions in the US have special programs favoring contracts with minority-owned businesses. Currently, a minority group member is defined for these programs as an individual who is a U.S. citizen with at least 25 percent Asian-Indian, Asian-Pacific, Black, Hispanic, or Native American heritage.
    This definition discriminates against anyone who just claims to belong to a minority—a
    claim analogous to that of the “trans” women
    athletes under discussion here.

    Moreover, the definition discriminates against me, and many other minorities (such as Maltese-Americans, Americans with mixed heritage, acrophobia, and a taste for modern classical music, left-handed Americans with freckles and sinus trouble, and innumerable other small groups). Since the uniqueness of everyone’s particular combination of ancestry, experience, and characteristics makes everyone into a “minority”, it follows that every business, from a local gardener to the Trump Organization and Amazon, could plausibly demand certification as a “minority-owned business”. I look forward to the ACLU’s joining a legal effort on behalf of this claim.

    1. There’s a big difference here, Jon. In your analogy to favored contracts, there is no evidence of significant innate differences in the business acumen of the stakeholders. Rather the policies attempt to redress historical economic inequities that have nothing to do with any innate abilities to run a business. This is very different than what is at stake with women’s sports.

      1. You’re right about there being a good intent behind the law, but it does lead to farcical situations…and perverse incentives for minority businesses to not grow and prosper.

        Here’s how it works: let’s say there’s some nice juicy government contract covering 10 full time jobs with a narrow expertise. The government states that preference will be given to small businesses and minority owned businesses. A giant contractor (like Booz, or Northrup, but I’m using them purely as an example and am in no way attempting to impugn them) will then go out and fine a small, minority owned business to partner with. The giant provides the intellectual power to write a winning proposal. They have all the needed resumes to wow the client. Their overhead rates are comparatively lower than any small business could manage, because of economies of scale. The small minority business has the category advantages. But because the win is really about the giant’s experts and lower rates, the giant will take 7-9 of the contract spots, with the minority owned business getting maybe 1-2 plus some pass-through money. They’re basically a cover. What’s more, if they were to take more of those spots and grow their workforce, they would take away from the reason the giants partner with them, because they’d no longer be a small business. The next time a juicy contract comes around, the giant is going to ignore them in favor of a smaller, minority-owned company to partner with.

        I’m not actually opposed to attempts to redress historic harms, but they have to be well thought out. Just as policies to bring greater equality to LGBT citizens must not include perverse incentives that cause people to game the system and, importantly, prevent them from achieving the equality the system was intended to create. As Jerry said, it doesn’t benefit trans women if a policy intended to allow them to compete results in elimination of the competitions they wanted to participate in.

    2. If there’s any basis for these racial preferences it must be to remedy invidious discrimination, so I find it interesting that (Asian) Indians get racial preferences. They have the highest per-capita income of any ethnic group in the United States. They’re hardly disadvantaged, on the whole…

    1. Of course, this policy will lead to trouble
      with trans-species contestants, such as people claiming to be elephants, elephants claiming to be people, sharks claiming to be wombats, and so on. Perhaps the ACLU will step in to help clear these matters up.

  5. Let’s suppose everyone was wrong all this time, and it’s indeed all unfair the way it was handled traditionally.

    My questions is this: does the ACLU or woke activist want to abolish women’s sports, and if not, how does that gel with their current approach?

    A follow up would be: why is it that woke activist and apparently ACLU go out of their way, trying really hard, to avoid at all cost the “common sense” objections most people will have, as misguided they might be.

    1. Someone should point out to ACLU that what they really want is ‘human sport’. No women, no men, just human. They want universal equality. Everyone in one field.

      No more women’s world records, no more women’s soccer, just human records and human soccer.

      This is not going to end well for ACLU.

  6. The best solution I know that accommodates the various interests is to rule that women can participate without restriction in male physical sport, and that non-transitioned trans-women are required to compete in those events.

    1. An easier solution would be to remove the men/woman boys/girls distinction. Base it on testosterone level/potential.
      Then you’ll find out if their complaint is whether they can’t compete or can’t win. If their complaint is that they can’t win at the higher T level, well, too bad, neither can 99% of the population.

      1. Mostly agree.

        Though I’m also fine with the notion of keeping men’s & women’s sports as-is, and having the women’s sports governing bodies decide on trans participants on a case by case basis. My guess is that the WNBA or WTA or another governing organization like them is better suited to come up with a reasonable but compassionate compromise, than is the ACLU dukeing it out with a State in an adversarial court case. I could be wrong about that, but I’m guessing most such organizations would be looking for ways to be welcoming and fair to trans women (while remaining fair to non-trans women).

        1. Someone like Dennis Rodman in the WNBA might make an amusing spectacle for the fans, but I doubt the players would agree.

  7. Although I understand why the OP refers to a possible difference between transgender athletes who have or have not undergone some medical transition, I think overall it’s a mistake to emphasize such a possible difference. The main reason is that this emphasis concedes that starting hormone replacement, or having surgery (especially to remove testes), *would* lead to more female-like physiology and athletic capability (and a smaller difference between biological females and trans women competing against each other). I think we know far too little about how male bodies respond to those medical interventions, especially teenage male bodies. And we know far too little about the range of responses, where some responses might be large (and become more female-like) and others might hardly respond at all (and remain mostly male-like). Until much more research is done, we should just say that it’s likely that a male body (no matter what stage of transition has been reached) is expected on average to have much greater athletic ability than a female body, and should be excluded from women athletics. That view might change with more research and better understanding of how some male bodies could be made more female-like for athletics purposes, but it seems like the appropriate stance right now.

  8. Wow, do these , forgive me the incentive, idiots not see they are playing straight into the hands of the Trumpists?
    It is a great argument for them that ‘liberals’ (or ‘libtards’, as they like to call them) are completely detached from reality. And who could argue with that?

  9. This seems to me to be a very simple legal issue to be decided by the courts. If they meet the legal definition of females they legally have to be allowed to compete as females. If they see males then they cannot. The laws and perhaps the constitution will have to be changed but as of right now a person is legally either a male or a female and each is entitled to the full rights and privileges thereof with no exception.

    1. This seems the way it has been decided in 16 states. Now it is early enough to where data is spotty, but in time, as this goes on longer and becomes more widespread, then all major athletic events for women will be dominated by non-transitioned trans-women. I don’t “get” how anyone would want to see the end of women athletics as we know it for the sake of political correctness.

      1. I don’t understand that either, and don’t think they should compete. One legal issue us whether this should be a federal issue with all states giving to comply. Or should it be left to the states. Another question is whether this us an issue of political correctness. There are real people affected and the rights of transgenders needs to be decided. It is more than political correctness for the people involved.

  10. Those are some brave girls protesting. Trans activists are vicious and have been violent. I’m not sure they know what they’re in for.

  11. How about one rule: XY cannot compete with XX in the same class. Seems pretty simple to me. People with abnormal chromosomes can be treated on a case by case basis.

  12. JC:”Of course, as I’ve repeated endlessly, anybody who claims they’re a woman should be respected as such, and not discriminated against in nearly any way.”

    No. Women who claim they’re women should be respected as such. Trans women are not women. They’re men. They might be very feminine men, but they’re men none the less.

    JC: “Of course this all hinges on the question of “who is a woman and who is a man?”, a thorny issue for the courts that have to decide this.”

    Are there any other questions of biology that you’d like to cede to the courts?

    1. A good point, and Jerry knows, probably better than most of us, that courts are generally not very conversant with biology, or science in general.

      1. Yup. There’s a reason that peer review in science refers to other scientist in the specialty and not a random collection of friendly people.

    2. All legal matters are settled by the legislature and the courts. Whether are not they are allowed to compete is a legal question. How they are classified by science is the question for biologists.

      1. I would say that the question of “who is a woman and who is a man?” is not a legal question, but a biological one that has already been answered. The question of who is allowed to compete in what category might be a legal one, but let’s not confuse the legal question with the biological reality.

        1. Frankly, it sounds to me like you reject an important part of what JAC has been saying. Specifically, that sex and gender are different, with sex being biologically determined where gender is not.

          Are sex and gender different, to your way of thinking? Or do you consider them to be synonyms for what JAC refers to as sex?

          1. I think sex and gender are different, but intertwined. The problem is that certain groups use the term “gender” like religious people use “faith.” It means whatever it needs to mean to win the argument at the time.

            The most accurate definition I can think of for gender would be something like “stereotypes associated with sex.” Men typically act in a way we would consider masculine and females act feminine. But a man can act in a feminine manner. This doesn’t make that man become a woman.

    3. I think we should strive mightily to consider trans women to be women in virtually every respect. This includes use of pronouns, identification on drivers’ license, and pretty much everything else that comes up. I want this to extend to use of a womans’ restroom, though I know that is a very prickly problem with no universally agreeable solution.

      1. I disagree.

        I will call a trans-woman “she” if that person gives the appearance of being a woman. This is because I base my pronoun choice off the appearance of the person I’m referencing. If a masculine presenting individual wants me to call them “she” then I will make an attempt as long as the other person knows that I’m going to fail more often than not.

        As for bathrooms, maybe the men’s/women’s distinction should be seen as more of a suggestion? People can use whichever they are comfortable with knowing that masculine people will get social blowback for using the women’s and vice versa? The only time it would become a legality is if the person was doing something illegal such as peeping tom type behavior.

      2. Speaking as a woman, I’ll be damned if I let my sex be redefined by unscientific, sexist criteria which basically amounts to “having the mental attributes of a woman.” I will be polite and courteous, and address people as they prefer, but I’m not going to strive to consider Trans Identified Males to be women, mightily or otherwise.

    4. Since the context of those quotes is clearly about issues of social recognition and discrimination, the concepts of ‘man’ and ‘woman’ are not solely in the domain of biology. No reason to stamp one’s feet and deny this. We are talking about matters of political contestation and moral/legal adjudication, not solely matters chromosomal. This arises because trans people can have a multitude of traits which ‘blend’ what are normally highly sex-correlated characteristics. On the other hand, if a trans woman were to demand that she had female gametes, despite as a matter of fact only having male gametes, then okay, that is clearly a factual claim squarely in the realm of biology. No one, to my knowledge, has been so daft, since that would be a truly pointless claim.

      1. The context is that trans people are trying to insist on social AND legal recognition of a biological falsehood. “Man” and “woman” are in the domain of biology because they are defined on a biological basis.

        I also understand that trans (and non-trans) people can have traits that fall anywhere on the spectrum of sexually stereotypical characteristics. This doesn’t turn a male to a female. It just means there are feminine men and masculine women.

        1. The ‘falsehood’ being asserted is that an overlap in sexual characteristics is sufficient for a certain amount of recognition of trans women as women in a social/legal, not a biological, sense (same for trans men). That is, no trans person is asserting that they are producing the opposite class of gametes than they really are producing, which is the only definitive biological fact of the matter, since gametes really are binary.

          Social/legal recognition is not something to which one can apply truth statements, but rather can like/dislike, with moral and legal arguments as reasoning. It is up for contestation to what extent legal rights should be given and when, but again, that ain’t biology.

          1. I would say that the falsehood is that people who are biologically one sex can become the other through sheer declaration or that falling on one side of the spectrum of sexually stereotypical characteristics can make someone a different sex.

            In sport, we separate the sexes because of biological differences. As such, the biological determination of sex is the only one that matters.

  13. There is a name for those ‘trans-women’ (especially if not ‘transitioned’ by hormones and surgery) competing in female competitions.
    It is like a Heavy Weight boxer competing in the Bantam or Feather weight category. A 100 kg man deciding he ‘identifies’ with a weight of only 50 kg. Should we take that seriously?
    The word I was referring to is “cheat”.

  14. “Of course, as I’ve repeated endlessly, anybody who claims they’re a woman should be respected as such, and not discriminated against in nearly any way. ”

    Anybody? Any man that claims to be a women (without transitioning) should have access to woman shelters, bathrooms, insists that their genitals be waxed by female beauticians etc?

  15. Additionally, the language of the complaint, which deliberately misgenders transgender youth and demands that high school athletics be organized by chromosomes, is an assault on the basic dignity and humanity of transgender people and a threat to the privacy and equality of all students.”

    If women cannot use language which names the problem, then they cannot make their case. What the ACLU calls “misgendering” is truth-telling: the transgender girls are boys. It is one thing to ask for courtesy: it’s another thing to shut down discussion by demanding that those making the case use words which concede error and manipulate the facts.

    It would be like trying to sue someone and being forced by the courts to refer to them as “the innocent party.”

  16. Trans women are ‘biological’ women in terms of their brain (gender identity is a cerebral sexual trait), but they are ‘biological’ men in terms of the rest of their body (hormones, strength, etc.).
    Since brain sex is irrelevant in sports, it is an obvious injustice to allow trans women (at least those who have not yet received any hormonal treatment) to compete against cis women.

    1. “Trans women are ‘biological’ women in terms of their brain (gender identity is a cerebral sexual trait), but they are ‘biological’ men in terms of the rest of their body (hormones, strength, etc.).”

      I don’t think we know this is true. Many activists would characterize the trans identity as an internal quality or experience and not as a biological trait associated with sex differences caused by sex chromosomes. Some evidence for that comes from the insistence that differences between men and women are socially constructed rather than biologically determined.

      It seems very likely that the large majority of individuals who currently identify as trans will turn out to be simply gay, with an unusual combination of sexual orientation and personal preferences for social presentation. Some evidence for this comes from the apparently growing number of trans individuals who detransition later in life back to their original gender identity. Other evidence comes from the trans women who prefer female sexual partners, do not transition physically (through surgery or hormone replacement), and identify as trans lesbians. That doesn’t seem biological or associated with sex chromosomes; it seems psychological, and mostly social.

      But overall I don’t think we know nearly enough about all of this to draw any conclusions yet about the biological or social basis for any of the feelings about identity and sexual preference that trans individuals express. Those feelings in many cases seem to be real and profound (though I have my doubts in cases of socially contagious trans identities within social groups of teenage girls). But those feelings don’t necessarily have a biological (that is, a genetic) basis.

      1. There are children who since they are able to speak already manifest their trans condition. These cases cannot indicate a “social construction” but an innate instinct (a biological trait resulting from the way the brain of the fetus was built).

        Of course, the “cis-trans” scope is a continuum and the instincts present in the intermediate cases will differ from the instincts closest to the cis pole and the trans pole.

  17. There is no winner in this race, just a farce, rationality suspension, lost logic and butchered female equality and rights.
    To be sure, identify as you will and want but expecting that will to change your biology is wishful thinking, naive and myopic.
    So — just as perhaps it will require chemicals and surgery to realise your desired gender, a little integrity, consideration, realism shown toward that prefered gender is also required.

  18. I’ve already said my pieces on the previous similar thread, from, I think, last week.

    I will only say this. I recently had a discussion on this issue with my wife. Her default reaction is to side with the trans side.

    I explained to her some of the issues and that completely un-transitioned males are claiming all sorts of things. I gave her real examples.

    She thought about it and said, yeah, those things would not be right. And” It’s not a simple thing to decide.

    I’m with Jerry in being willing to use pronouns, etc.; but for the un-transitioned: No, you can’t compete against biological women and girls.

    I think people need to expand their thinking and remember human nature. I remember when the internet was going to connect everyone in the world and create world peace. Anything that denies human nature cannot work. People cheat. People have self-serving motives.

    Imagine this train of thought: I can’t set the world record in men’s swimming? Well, heck, I can in Women’s (and those pesky women will never beat it); and I’ll get famous either way. And I get the prize money!

    The ACLU position seems to be that people do sports only to sing Kumbaya with their buddies. Ignore the salaries, fame, endorsements, record books, etc.

    1. “Imagine this train of thought: I can’t set the world record in men’s swimming? Well, heck, I can in Women’s (and those pesky women will never beat it); and I’ll get famous either way. And I get the prize money!”

      In high school I was a pretty decent runner and got a small athletic scholarship to run in college. If I then “transitioned” I would have been the best female runner in the country and could have gotten a full ride to any school I chose. That little lie could be worth up to $300,000 over 4 years plus I would move up a rung or two on the victimhood ladder.

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