One touchstone to determine if someone is an extreme gender activist (and by “extreme” I mean “unreasonable”) is to ask them if trans women, born as biological males, should be allowed to compete against biological females in women’s sports. To me, a “yes” answer means that somebody is not only ignoring the palpable data on the physical advantages of transwomen due to having gone through male puberty, but is also okay with the obvious unfairness this physical difference can impose on women athletes. As the number of transgender people is increasing exponentially, this issue is not going to go away.
Of course there should be some accommodation to allow transgender women to compete in sports (we’re talking about trans women here as the problem doesn’t arise in the other direction). People who want to compete should not be stifled in their desire. The problem is how to allow trans women to compete without being unfair to biological women athletes. Various solutions have been suggested, including allowing a “women’s” league and a “men’s” league, with the latter allowing all trans people to compete. None of the solutions are completely satisfactory, but they are fairer to biological women and do allow trans individuals to engage in sports competition.
This article by NYT op-ed writer David French goes over the problem, recognizing that the participation of trans women in women’s athletics is both unjust and, under present regulations, illegal.
Click to read:
French first goes over Title IX, what it stipulates (i.e., no denial of educational opportunities to either sex), and explains why sex is different from race when it comes to athletics, where separate competitions are of course not allowed (within a sex):
Let’s go back to the language of the statute itself, which speaks in terms of both “participation” and “benefits.” If you treat people of different races the same, people of all races can both participate and receive the benefits of participation in athletics. If you treat people of different sexes the same, the reality is very different.
The evidence is overwhelming that there is a significant average difference between male and female athletic performance, including at the most elite levels and even when female athletes receive funding, training and nutrition comparable to that of the best male athletes. In a 2020 article in The Duke Journal of Gender Law and Policy, the authors, Doriane Lambelet Coleman, Michael J. Joyner and Donna Lopiano, observed that “depending on the sport and event, the gap between the best male and female performances remains somewhere between 7 to 25 percent; and even the best female is consistently surpassed by many elite and nonelite males, including both boys and men.”
The authors walk through a number of examples of disparate performance, but here’s one: Vashti Cunningham is one of the best female high jumpers in the world. Her best jump places her in the world’s top 10 among females. But in 2019 alone, 760 American high school boys jumped higher than she did when she was in high school.
It’s easy to find similar statistics in professional sports. Former NCAA swimmer Riley Gaines, who’s been heroic in speaking out for women’s rights to compete against only other biological women, notes that both Venus and Serena Williams, beacons of excellence in women’s tennis, were beaten by the #203 ranked male tennis player. That of course is not to denigrate their remarkable abilities. It’s just that biological men and women differ in so many aspects of musculature, physiology, and bone density that this kind of result is inevitable.
Connecticut is one of the states that have a misguided law allowing trans women to compete against biological women in athletics. In that state there’s now a case in which four women, former track athletes in high school, have brought a suit against the law in federal court. After an initial rejection of their claim on specious grounds of plaintiff’s “lack of standing”, the full Connecticut appellate court took up the case and is deciding it now. This is something that’s probably destined in the end for the U.S. Supreme Court. And, sadly, the ACLU is on the side of the state.
To be clear, the question was not whether the transgender girls did anything wrong — casting any aspersions on their participation in the races would be profoundly unjust. They ran the race in accordance with the rules of the race. The question was whether the rules were wrong.
The transgender athletes intervened in the case, with the aid of the A.C.L.U., and argued that “Title IX does not require sex-separated teams or an equal number of trophies for male and female athletes.” They emphasized that the plaintiffs “repeatedly outperformed” the transgender athletes “in direct competition.”
But the argument is not that transgender athletes will always win, but rather that if schools replace sex with gender identity as the relevant criterion for participation, then the statutory sex-based promises of participation and benefits in educational programs will be undermined. (Gender identity, as the A.C.L.U. defined it, is a “medical term for a person’s ‘deeply felt, inherent sense’ of belonging to a particular sex.”)
The Biden administration, unfortunately, is on the side of Connecticut, and is indeed trying to replace sex with gender identity as “the relevant criterion for participation.” An NPR article from April notes that the administration wants to alter Title IX so that “sex” becomes “gender”:
On Thursday, the U.S. Education Department announced a proposed change to Title IX, which prohibits sex-based discrimination in federally funded education programs. The proposal would make it illegal for schools to broadly ban transgender students from sports teams that align with their gender identity, rather than their assigned sex at birth.
The department says the move comes after two years of outreach to stakeholders across the country, and the changes still give schools some flexibility to ban transgender athletes depending on age and sport.
“Every student should be able to have the full experience of attending school in America, including participating in athletics, free from discrimination,” said U.S. Secretary of Education Miguel Cardona. “Being on a sports team is an important part of the school experience for students of all ages.”
It also notes this:
The proposed Title IX changes will be published to the Federal Register in the next few weeks, after which it will open for 30 days of public comment. Those are just the first steps in a long process to alter the law. Assuming the proposal survives that process, schools and students will not see the rule changed or enacted for months if not years.
The commenting time is over, but changing the law may be superfluous if the Supreme Court rules on the matter in the meantime.
French ends his piece this way, though I think he fails to realize that “a small number of trans women” may become much larger. And, at any rate, it’s not the number of trans women athletes that matters, but the principle of fairness to biological women athletes.
I’m not a catastrophist. I hate rhetoric that declares that women’s sports will be “destroyed” by the inclusion of a small number of trans women in athletic competition. I hate even more any demonization or disparagement of the trans athletes themselves. When they compete according to the rules of the sport, they are doing nothing wrong. But legal definitions do matter, especially when they are rooted in hard facts, such as the systematic, documented performance gap between the sexes.
All people are created equal, and possess equal moral worth, but we are not all created the same. To protect equal opportunity, there are times when the law should recognize differences. And in the realm of athletics, if we want to both secure and continue the remarkable advances women have made in the 51 years since Congress passed Title IX, it’s important to remember that sex still matters, and sex distinctions in the law should remain.
French may be called a “transphobe” for taking this stand, as I have been, but I reject this characterization. Trans women should have equal rights and treatment in nearly all areas, except for those few places where the difference between biological and trans women really matter. Those include, beyond athletics, rape counseling, shelters for abused women, and women’s prisons. After all, every claimed right has to be balanced against potential harm if it’s abused, and that also goes for First-Amendment free speech, which has a number of exceptions.
If you want to keep up with developments in this area, and are on the side of French, you can follow the organization “Sex Matters” or, on Twitter, its vocal exponent Emma Hilton, a developmental biologist and a colleague of Matthew Cobb at the University of Manchester. In the U.S., you can follow Riley Gaines (see video below) or #SaveWomensSports on Twitter.
Here’s Riley Gaines testifying a few days ago before the Senate Judiciary Committee. She also deals, at the end, with the question of whether her views are transphobic.
Finally, most Americans agree with Gaines, according to a poll conducted in May and reported in the Washington Post:
The poll, conducted May 4 through 17 among 1,503 people across the United States, finds 55 percent of Americans opposed to allowing transgender women and girls to compete with other women and girls in high school sports and 58 percent opposed to it for college and professional sports. About 3 in 10 Americans said transgender women and girls should be allowed to compete at each of those levels, whilean additional 15 percent have no opinion.