Biden administration withdraws from lawsuit banning transsexual males from competing in women’s sports

February 26, 2021 • 11:00 am

Here is the obligatory disclaimer: I approve of the Biden administration’s attempt to undo many of the changes or executive orders handed down by the Trump administration: immigration, Covid relief, the damn border wall, equality for people of all genders, and so on. But, relative to the last issue, there’s one thing that the Biden administration just did that deserves criticism.

As reported by NBC News, Biden’s Justice Department, as well as its Education Department’s Office for Civil Rights, have withdrawn their support of a federal lawsuit in the state of Connecticut seeking to overturn a state law requiring any high school student who identifies as a women to be allowed to compete in women’s sports. Click on the screenshot to read.

Now we’ve discussed at length the problems with allowing transgender women to compete against biological women, for their strength, muscle, and bone advantage is already largely set right after puberty, and persists even with hormone treatment and surgery. How we deal with medically or surgically treated transgender women is a contentious issue bearing on biology and ethics, and will have to be resolved subjectively.

But that’s not the most debatable part of Connecticut’s law.. The law “requires that all high school students be treated according to their gender identity.” That means that if you identify as a woman, you are a woman and can compete against women, even if you have never undergone medical treatment for “transitioning.” And, as the article reports,

On his first day in office, President Joe Biden signed an executive order prohibiting discrimination based on gender identity in school sports and elsewhere. Former president Donald Trump had rolled back protections for transgender people while in office.

Now Trump was clearly catering to his base, and I’m in favor of Biden’s strengthening protections for people of all gender identities. But to me, that “protection” stops when pure biological men who take the identity of women are allowed to compete against biological women. You know what the results will be: the death of women’s sports. Here’s one example from Connecticut; as far as I know, neither Miller nor Yearwood had undergone any form of medical transition, at least when this competition took place:

(From NBC): Bloomfield High School transgender athlete Terry Miller, second from left, wins the final of the 55-meter dash over transgender athlete Andraya Yearwood, far left, and other runners in the Connecticut girls Class S indoor track meet at Hillhouse High School in New Haven on Feb. 7, 2019.Pat Eaton-Robb / AP file

Previously, William Barr had submitted a “statement of interest” in the Connecticut suit, a statement that supported the girls who brought the suit. and said that allowing such competition might violate Title IX’s provision that women should be given equal opportunity in all high-school endeavors. The matter is described this way by The Hill:

The Justice Department’s withdrawal came ahead of a Friday hearing in the case over the state’s motion to dismiss the lawsuit. The families of three high school girls sued Connecticut officials in 2020, arguing that allowing transgender athletes to compete in girls’ sports forced athletes “to compete against boys.”

“Forcing them to compete against boys isn’t fair, shatters their dreams, and destroys their athletic opportunities,” an attorney for the plaintiffs, Christiana Holcomb, said last year. “Having separate boys’ and girls’ sports has always been based on biological differences, not what people believe about their gender, because those differences matter for fair competition.”

Former Attorney General William Barr agreed, arguing in court documents at the time that the state’s current policy runs afoul of Title IX, which guarantees girls equal access to sports and other school activities.

Now the government has withdrawn its support, saying simply that “The government has reconsidered the matter.” The American Civil Liberties Union (ACLU), of course, is supporting the state, representing Miller and Yearwood, the two athletes shown above, and agreeing with Connecticut’s misguided law.

From NBC:

Connecticut Attorney General William Tong said Tuesday he was pleased with the Justice Department’s decision to withdraw Barr’s statement.

“Transgender girls are girls and every woman and girl deserves protection against discrimination. Period,” he said in a statement.

Transgender girls are not girls for purposes of competing against biological girls, especially if they’ve had no medical treatment. Period.

Lest the Pecksniffs descend, I affirm again that the right of anybody to have their gender identity respected and supported by morality and law should hold in almost every area of human endeavor. But there are a few exceptions, and sports is one. Once again, there’s a reason why men’s and women’s sports are kept separate.

50 thoughts on “Biden administration withdraws from lawsuit banning transsexual males from competing in women’s sports

    1. I admit it is strange to me. Why would a transsexual male want to compete against cis females? And wouldn’t winning over and over again against cis females be hollow? I just can’t get into the mindset of a “competitor” who thinks this is fair.

      I agree with Jerry that there should be a third category in HS sports.

      1. You cannot use that sort of logic to understand the motivations of someone who very likely has a tenuous grasp on reality and their own mental health.
        The trans identity itself is very likely just one symptom of a larger set of problems.

      2. I certainly think it would be detrimental to the cause of transgender rights because, when the other competitors and their parents and the sports fans generally see an obviously unfair competition, they are not likely to react well. There are, apparently, reports of transwomen athletes getting booed when they win, which really doesn’t surprise me.

        However, there’s a cynical part of my brain that is asking a question:is it true that it is possible, in the USA to get a sponsorship for college on the basis of sporting ability? If so, well…

      3. The author’s attitude about trans folks is conflicted at best, intellectually dishonest at worse.

        On one hand, he accepts what it means to be trans at face value…trans is a state of mind, not a state of biologic fact.

        But, on the other hand, he draws a line, where the only thing that matters is, in fact, biologic fact….in this case whether it is fair for biologic males to compete against woman.

        One can’t have it both ways. Society is being told trans folks’ access to gender specific situations….such as using the same restrooms, pronoun demands, language censorship (to avoid hurt feelings)…is completely justified because gender is not biologic fact…in fact, biology is irrelevant. So, if one accepts this reasoning, as I assume the author does, based on his stated opinions on trans rights, I fail to understand his biology based rationale when it comes to males competing against women. The rationale is totally contradictory.

        1. Sorry, but it isn’t contradictory if you’re willing to compromise on the view of treating trans women in the few cases when it conflicts with fundamental fairness. And biology-based fairness comes into play when it comes to sports. Trans women may be women in terms of gender, but they are either “manlike” (if they’ve had some medical treatment), or completely male in terms of sex if they’ve undergone no treatment.

          You don’t seem to grasp the fact that one can respect assumed gender identity in all cases out of civility and morality UNLESS that identity leads to abrogation of other “rights,” like the right of biological women to compete with members of their own sex (or males who have been treated to have the physiology and morphology of the female sex). And yes, you can have it both ways, and in fact we already do since the Olympics requires a hormone titer that could include some trans women but exclude others.

          And you clearly haven’t read the Roolz about civility.

    2. Quite. If an unmodified male decides to identify as female, she can enter women’s sports. So what can’t an unmodified male, identifying as male, do so? The answer seems to be to to respect, cherish and applaud the first of these people (whilst not being so kind to the females already there), whereas the second is a cheat.

  1. Madness. I wonder if anything short of a complete boycott of such events (by male athletes as well as female) can stem this idiot tide.

    1. Given that this is HS sports, a partial solution would be for collegiate athletics programs to look past the record of wins to focus on times (or jump height/distance for jump events, throw lengths for throwing events, etc.). If you’re a female (sex, not gender) who can run a 100y dash in 10.3 seconds, a college program looking for great female (again sex, not gender) athletes will hopefully give you a scholarship, even if you came 2nd in an all-state competition to a trans female athlete.

      That’s only a partial solution, but the point being that if the professional or more serious collegiate level athletics run their programs on sex instead of gender, then laws like Connecticut’s and the place results of their HS sports competitions become less of an issue. The schools looking at those HS students will simply start ignoring place and focus instead on times etc.

    2. Coincidentally, Andrew Sullivan’s current Weekly Dish is entitled “Two Sexes. Infinite Genders.” It’s not about sport per se, but the title contains a relevant truth.
      Why is it so hard for the loony fringe to understand that sport is about sex, not gender?

      1. Just got another update from A.S. that includes a link to a YouTube vid on this issue. I have not watched it yet.

  2. Has anyone offered feasible notions on how to address this? Short of Harrison Bergeron type interventions, it’s not clear (to me) how this kind of competition can be made equitable.

      1. Don’t forget cisgender women in the Open, should they choose! The “Open” category should be all-welcoming. That’s kinda the point: to make everyone who wants to participate in it feel welcome, regardless of sex or gender.

      2. I agree: Open division for any comers, including cis-women. Women’s division for biological women.

        There’s huge overlap in men’s and women’s sport performance. However, at the elite end of the spectrum (where the recognition, endorsements, and money are) there’s essentially zero overlap. If you are a weekend warrior, in a fun league, who cares, right? (I always played in mixed softball teams/leagues — it was more fun!) And there are plenty of my women friends who can kick my ass in, for instance, mountain biking (maybe not road biking). But for a serious female HS athlete who is hoping for a scholarship at university, competing against physical males is unfair.

      3. Would that work? Don’t the transgender women want to compete with the biological women? I thought that was the whole point. I doubt that the trans community would go for that.

        1. They wouldn’t. Trans women believe they *are* women, full stop. Anything less than that is decried as transphobia.

          1. Well, that would mean any male, even one who has not undergone any “trans medical treatment” (as in potentially any male, even Usain Bolt), who “believes he is a woman” should be able to compete in female events.

            That is just a variant in what we are talking about here.

    1. The Paralympics have about 500 different categories depending on the type of disability you have. Just invent a new category of sport for transwomen – or several, if the ones who have fully transitioned with the hormones and everything start complaining about the ones who have not yet undergone any medical treatment.

  3. I am opposed to youths being permitted to compete in girls’ sports by dint alone of their self-identification as females.

    But as a technical legal matter, I’m not sure the federal government ought to be intervening in state court lawsuits such as this. Title IX, which the Trump administration relied upon, seems a thin legal reed to support federal intervention in a case such as this.

    Generally speaking, it is left to the several states to sort these things out for themselves and to determine, at least in the first instance, the rights of the citizens within its borders regarding such matters, under what Justice Hugo Black famously referred to as “Our Federalism.”

    1. This was my thought too on reading this post, without the professional legal stuff of course. A lot hinges on the Feds’ reason for withdrawing from the case. I take it that they haven’t said much, which makes sense considering the sensitivity of the issue.

      It’s my understanding that the Feds, both the DOJ and SCOTUS, try to stay out of social issues until consensus among the states is reached. In other words, they don’t want to have a hand in setting social policy but stand ready to adjudicate if and when necessary. Of course, if an administration wants to drive social policy in a particular direction, they have many ways to do this. Sounds like they don’t wish to do that for this issue. If this is the reason for the withdrawal, I’m fine with that.

      1. I’m not sure this would arise to a claim under the Equal Protection clause of the 14th Amendment, but it may raise a statutory issue under Title IX. If so, and if the plaintiffs lose in the lower courts, they would be free to petition for a writ of certiorari to have the case reviewed by SCOTUS.

        I think this course of judicial review would be a preferable to having a political branch (here, the executive) barge in to try to set a national standard prematurely. There is (as the comments to your numerous posts on this topic themselves suggest) as yet no national consensus on how the complex questions raised by this issue should be handled. Under such circumstances, it is often better to allow the states to act — as Justice Louis Brandeis put it — as our national laboratories of democracy to try out various potential solutions, to see what works best.

      2. The Equal Protection Clause does not forbid the government from treating “classes” of people differently. Rather it requires the government to have a “legitimate public policy interest” in doing so. For example, the government can exempt 90-year old females from the military draft or not issue drivers licenses to people who are legally blind even if they somehow manage to eke through a driving test. It cannot, however, forbid people with blue eyes from obtaining drivers licenses.

        The government should be able to meet that standard by allowing the exclusion of trans athletes from competing in at least some female sports for the reasons previously stated here. (Only in theory that is as some court may rule otherwise)

        1. The way I understood Jerry’s question was not whether the Equal Protection clause allows states to exclude transgender athletes from girls’ competitions, but whether the EP clause compels states to let girls compete in events from which transgender athletes have been excluded.

          The answers to those two questions are distinct.

  4. Although it shouldn’t have to come to that, I fear that a boycott of events by girls and women is the only way the virtue signallers are going to be forced to confront the manifest injustice going on here. How anyone could look at that photo and not get angry about it is beyond me.

  5. I agree that having two categories, one for women, and another “open” category for everyone else seems the best option. But I don’t think that the harder variety of activists will at all go for it.

    It may be the case that this process will have to unfold further so that we may see more clearly how it will be in a wider system where trans women athletes are maybe (maybe!) routinely competing with cis women, and taking records, medals, and the other swag that come with winning over and over.
    It may come to pass that this is all a bit exaggerated, where trans women athletes are enough of a rarity that women’s sports are not really effected. Or it may be that it becomes the ruination of women’s sports as we know them. I don’t see how we can know right now.
    But can you imagine the more extreme scenario? Suppose this really takes off and is applied in the highest reaches of athletics, where the more government-controlled olympic teams like those in Russia or China routinely recruit trans women to really clean up in the medals.

    1. I feel certain that the two category system would not be acceptable to most of the activists. Their claim is that they are “real women”, no different from biological women. Moreover, very few biological women would want to compete in the open category, so we’d be left with what we started with. One category for biological males and one for biological females.

      1. Exactly. All sensible people agree with Jerry on the basics of this issue, but I’ve always thought that those who believe that merely identifying as a woman makes one a woman with no ifs, ands, or buts would certainly not accept not being allowed to compete in the women’s category.

  6. Does the CT policy apply to sports like basketball and soccer, where physical contact could cause a high risk of injury to biological girls from trans girls? If so, are the high schools willing to risk the litigation that will come when girls are injured?

    1. “What is the threshold for being a woman ?”

      For an adult, technically, 4’10”, or 147cm. Below that is considered a dwarf…although that doesn’t mean that one couldn’t also be a woman.

      Interestingly, the definition is the same for both males and females. Unknown if they use a different standard in Oaxaca or any other place with famously short people. (Cue Randy Newman…)

      And yes, I’m kidding. I recognize that the question referred to something else, about which I would have no idea.

      1. Can one be a woman Cartman-style, if you know what I mean ? It can’t be that easy, there must be some sort of filter.

      2. “What is the threshold for being a woman?”

        Reminds me of Mr. Lebowski asking The Dude “What makes a man?”:

  7. Can a woman who underwent breast reduction surgery that results in an improved athletic performance still be allowed to compete in the female division? If so, why?

    1. By that token we would only admit in a category people who have the exact same body. Is it because the body modification is artificial ? Would you draw the line at “surgical modification” ? Training produces body modifications more important than breast reduction. Look at the bodies athletes have.

      1. My question was approaching a rhetorical question. But “training” is not a good analogy as it only results in an expression of the biological traits that were already there. Weightlifting is not the same as grafting additional bicep muscles onto your arms.

        1. It is my understanding that female runners lose their perdiods. It is not the expression of a biological trait that was already ther, it is the cessation of the expression of a biological trait, and one that is central to reproduction at that.

          1. Same difference. The change results from the person’s inherent biology. Losing body fat that results in the reduction of breast size is not at all the same thing as artificially reducing size due to a surgical intervention.

  8. Not only do I support opening up sports to all comers, but I would like to see the ban on performance enhancing drugs rescinded. Athletes know the risks these days. I would like to see mutant super-beings compete.

  9. “the damn border wall”
    I wanted to say I hate being a nitpicker, but that just ain’t true. That’s what I get for loving language.
    It’s either “damned” or “damn'” with the apostrophe to denote the missing enunciation. You want the adjective, not the verb. God damn’ perscriptionists.

Leave a Reply