When the 1972 Title IX amendment to the Civil Rights Act prohibiting “discrimination on the basis of sex” was first applied to federally funded athletics programs, a debate about affirmative action ensued. Conservatives worried that in requiring the ratio of male-to-female athletes to always be the same, equality of opportunity was conflated with equality of outcome, and men’s sports teams across the country would be needlessly diminished (which indeed happened).
Now, Title IX is coming for women’s sports in the name of “gender identity,” that nonsensical progressive policy permitting males to compete against females if and when they claim transgender status. The wisdom of this policy has become a matter of faith for almost every Democratic legislator. The first prominent dissent came only this month from Representative Tulsi Gabbard (D., Hawaii), who has introduced the “Protect Women’s Sports Act” into the U.S. House of Representatives, (the Oklahoma Republican, Representative Markwayne Mullin, is a co-sponsor).
In a statement, Gabbard said the bill “protects Title IX’s original intent which was based on the general biological distinction between men and women athletes based on sex.” Emphatically, this means preserving “equal opportunity for women and girls in high school and college sports,” as well as holding to account those “states who are misinterpreting Title IX, creating uncertainty, undue hardship and lost opportunities for female athletes” by allowing males to dominate and displace them.
She’s absolutely right. On account of their elevated testosterone levels and androgenized bodies, males are generally stronger and faster than females; a fact reflected in the 10 to 30 percent performance gap in elite sports. But even in non-elite sports, it only takes a handful of male athletes to completely dominate the female field; a fact clearly demonstrated in Connecticut where two high-school-aged males (mediocre athletes in comparison with their male peers) deprived female competitors of 15 state championship titles and more than 85 opportunities to participate.
In that particular case, the Trump administration’s Department of Education Office for Civil Rights, as well as the Department of Justice, found after investigation that the state’s policy had indeed violated Title IX. One can only hope that a Biden-Harris administration will not reverse this decision.
In proposing the Protect Women’s Sports Act, Gabbard and Mullin recognize the urgent need for legal protections for female athletes. As the Supreme Court’s decision in relation to Title VII, Bostock v. Clayton County, unfortunately demonstrated, the logic of discrimination “on the basis of sex” is corruptible in various ways. In Harris Funeral Homes v. EEOC (the transgender case in the Bostock package), the majority of the Court was ultimately convinced by the argument that “gender identity” is an offshoot of sex and that, in the context of employment, distinctions between the sexes can amount to discrimination. There is no reason this woeful logic can’t be extended even more broadly.
In education, the collapsing of sex-based distinctions began even more covertly in 2016 under the Obama administration’s “guidance” to schools and colleges, telling them to expand the definition of sex to include “gender identity.” The Equality Act, which Joe Biden and Kamala Harris have promised to pass within 100 days of office, would finish this job: overwriting sex with “gender identity” explicitly in federal anti-discrimination law and spelling the end of women’s sports as we know it.
Pushback against transgender sports policies is already being mounted at the state level. In March, Idaho became the first state to ban biologically male athletes from competing in female sports leagues, though the enforcement of that policy was soon halted by a federal district court at the behest of the ACLU.
Again, a law such as the one Gabbard and Mullin propose would bring about a much-needed clarification about the meaning and purpose of Title IX and offer some protection to female athletes. Though the bill is obviously not going to pass a Democrat-controlled House, its symbolic value — Democratic dissent and a robust, nonpartisan defense of the principles of biological truth and fairness — ought not to be underestimated.