This article contains commentary which reflects the author's opinion
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On January 20, 2021, President Joe Biden issued an executive order which, in essence, threatened to “take federal education funds away from any state that refuses to allow transgender athletes to compete in whatever category they feel like choosing.” In response to this executive order and in light of the Supreme Court’s decision in Bostock v. Clayton County, several states have begun to advance laws that would “ban transgender student-athletes from competing in the categories they ‘identify’ with.” While some will undoubtedly assert that such laws unfairly target transgender student-athletes, others will assert that they are necessary to protect women’s sports and to provide female athletes with a fair opportunity to succeed.
Biden’s executive order was foreseeable in light of the Supreme Court’s ruling in Bostock. As reported in The National Law Review, in Bostock, the Supreme Court held that “Title VII’s prohibition against ‘sex discrimination’ includes a prohibition against discrimination based on sexual orientation and gender identity.” In other words, since Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex (among other things), it also protects against discrimination based on “gender-identity,” which falls under the umbrella of the term “sex,” as used in Title VII.
Supreme Court Precedent
The Supreme Court’s broad definition of “sex” in the Bostock case opened the door for Biden’s recent executive order and, in essence, created a dilemma for female athletes and/or various schools throughout the country. Specifically, by holding that the term “sex” includes a person’s “gender identity,” many schools that receive federal financial assistance were placed in a difficult position in light of Title IX of the Education Amendments of 1972, which states that, “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 or activity receiving federal financial assistance.”
Moreover, female student-athletes have also been unfairly forced to compete against biological boys/men who identify as girls/women. One such example is the case of Selina Soule, a track star at Bloomfield High School in Connecticut, who was unable to qualify for regionals in the 55-meter run because two spots were taken by biological boys who identified as girls and who ran faster. This was due to policy implemented by the Connecticut Interscholastic Athletic Conference that permitted biological boys to compete in girls’ athletic competitions if they claimed a female gender identity. There are other examples where biological boys who were transitioning into girls went on to win championships while competing against biological girls. Such examples can be found here, here, and here.
Many of the states that have recently proposed laws banning transgender student-athletes from competing in the categories that they identify make similar arguments. For example, the North Dakota legislature recently passed a bill that would restrict competitors to biological gender categories. If the bill passes in the state senate, it will head to the governor for signature. According to Breitbart, citing North Dakota Rep. Kathy Skroch, “This is about girls competing with girls, ensuring equal opportunity and keeping a level playing field in girls’ sports.” Skroch further noted that the bill would assure “50 years of progress and protecting women against discrimination.” Given such concerns, several other states have proposed similar laws, including Mississippi (“Mississippi Fairness Act”), Tennessee, and Utah. Other states are also considering similar laws, including Oklahoma, South Carolina, Kentucky, and New Hampshire.
Undoubtedly, the legality of these laws (should any of them pass and become law) will ultimately be challenged (especially in light of the Bostock decision). Proponents of such laws will likely assert, in part, that without such laws, biological girls will face discrimination, lose the opportunity to participate in competitive athletic events (including state or national meets), and/or lose the opportunity to obtain college scholarships. As recently reported by Fox News, Soule was quoted as saying:
“I lost out on the opportunity to qualify for the regional New England meet in 2019 because I was beaten by two biological males and if they were not there in the race then I would have been able to qualify for the meet. It’s just a very frustrating experience because all we hope to gain by this is fairness to be restored to our sport.”
Soule raises a legitimate concern. There are clear differences between boys and girls when it comes to sports and girls deserve a fair opportunity to compete and to succeed. Kristen Waggoner, who serves as General Counsel with Alliance Defending Freedom (which represents Soule and two other high-school track athletes), recently told Fox News, “There are real, legitimate differences between the sexes and when the law doesn’t recognize those differences, it’s primarily women and girls that take the brunt of that harm and that’s what we’re seeing in Connecticut and the Biden order nationalizes that harm.”
Time will tell who is right.