Transgenders in Sports

For John, BLUF:  The area of transgender is not one widely understood, but people tend to be quickly locked in, which is not helpful for rational discussion.  Nothing to see here; just move along.

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The U.S. Department of Justice weighs in on the side of limiting girls’ sports teams to … uh … biological girls.

Here is the case (No. 3:20-cv-00201 (RNC)):

SELINA SOULE, a minor, by Bianca Stanescu, her mother; CHELSEA MITCHELL, a minor, by Christina Mitchell, her mother; ALANNA SMITH, by Cheryl Radachowsky, her mother
            Plaintiffs,
     v.
CONNECTICUT ASSOCIATION OF SCHOOLS, INC. d/b/a CONNECTICUT INTERSCHOLASTIC ATHLETIC CONFERENCE; BLOOMFIELD PUBLIC SCHOOLS BOARD OF EDUCATION; CROMWELL PUBLIC SCHOOLS BOARD OF EDUCATION; GLASTONBURY PUBLIC SCHOOLS BOARD OF EDUCATION; CANTON PUBLIC SCHOOLS BOARD OF EDUCATION; DANBURY PUBLIC SCHOOLS BOARD OF EDUCATION
            Defendants.

.

Here is the lede plus three:

The United States files this Statement of Interest under 28 U.S.C. § 517, which authorizes the Department of Justice “to attend to the interests of the United States in a suit pending in a court of the United States.”  Id.  The United States enforces Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, and has a significant interest in the proper interpretation of Title IX. The United States also enforces several other federal anti-discrimination statutes that, like Title IX, prohibit sex discrimination, e.g. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and the United States has a significant interest in the proper interpretation of these laws.  The United States also has a significant interest in ensuring that federal funds are not used to discriminate on the basis of sex and other protected classes.  See 20 U.S.C. § 1682.

INTRODUCTION

Title IX requires that “[n]o person in the United States shall, on the basis of sex, . . . be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”  20 U.S.C. §1681(a); accord 34 C.F.R. § 106.41(a).  Title IX’s prohibition against sex discrimination extends to athletics operated or sponsored by recipients of federal money.  34 C.F.R. § 106.41.  As a result, covered institutions must “provide equal athletic opportunity for members of both sexes.”  Id. § 106.41(c).

The Connecticut Interscholastic Athletic Conference (CIAC), however, has adopted a policy that requires biological males to compete against biological females—despite the real physiological differences between the sexes—if the male is a transgender individual who publicly identifies with the female gender.  CIAC claims that “federal law” requires this state of affairs.  CIAC 2019-2020 Handbook (CIAC Handbook), at 55, http://www.casciac.org/pdfs/ ciachandbook_1920.pdf; see also Defs.’  Initial Summ.  Issues at 7, ECF No. 63. So do the proposed student-intervenors.  See Mot. to Intervene at 11, ECF No. 36.

They are incorrect.  Title IX and its implementing regulations prohibit discrimination solely “on the basis of sex,” not on the basis of transgender status, and therefore neither require nor authorize CIAC’s transgender policy.  To the contrary, CIAC’s construction of Title IX as requiring the participation of students on athletic teams that reflect their gender identity would turn the statute on its head.  One of Title IX’s core purposes is to ensure that women have an “equal athletic opportunity” to participate in school athletic programs.  34 C.F.R. § 106.41(c); see also Cohen v. Brown Univ., 991 F.2d 888, 897 (1st Cir. 1993) (“Equal opportunity to participate lies at the core of Title IX’s purpose.”). Schools realize that purpose primarily by establishing separate athletic teams for men and women and by ensuring that those teams are on equal footing. See 34 C.F.R. § 106.41(b)-(c).  Because of the physiological differences between men and women, the existence of women’s sports teams permits women to participate more fully in athletics than they otherwise could.

This is a lawsuit to allow transgender females (those who believe they are true females, born in a male bodies).  These transgender females wish to compete in sports with other females.  I see possible outcomes:

1. If you declare yourself female you can play with the girls.
2. You play with those who have the same birth sex as you.
3. If you meet a certain testosterone level you play with males, but below that you play with girls.
4. There are no teams or leagues based on gender.

From a practical point of view, I support Options Two or Three.  However, if that isn't good enough for some, there is Option Four.

Hat tip to the InstaPundit.

Regards  —  Cliff