Power play for women
States are passing bills to protect fairness in women’s sports. How will these new laws stand up in court?
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Mississippi Gov. Tate Reeves signed into law a bill on March 11 that would prevent biological men from competing in women’s sports in public schools and colleges. The law follows in the footsteps of similar legislation Idaho passed last year. South Dakota’s Legislature has also passed a similar bill, which Republican Gov. Kristi Noem said she would sign.
The issue has gained such prominence that currently about half of all states are considering bills to protect women’s athletics. Yet LGBT activists call the bills “anti-transgender”: More than 500 student-athletes signed a March 10 letter to the NCAA calling for the organization to stop holding championship games in states that pass the bills.
Civil rights groups filed a lawsuit against Idaho’s law on behalf of two student-athletes—one transgender and one biologically female—and in August, a district court judge temporarily halted the Fairness in Women’s Sports Act from going into effect. Other states also expect to face legal challenges from transgender students, and some observers wonder whether judges will ultimately strike down such laws.
Yet a solid constitutional argument supports the side of the female athletes: Legal precedent suggests the Constitution’s equal protection clause protects women as a group with very real distinctions from transgender athletes who identify as female.
The debate hinges on the meaning of one three-lettered word: “sex.” Does it strictly mean a person’s chromosomes, physiology, and biology? Or does it include one’s “gender identity,” the gender a person claims to be? Last summer, in Bostock v. Clayton County, the U.S. Supreme Court defined “sex” to include the latter in a case about Title VII, the federal law prohibiting employers from discrimination against employees and potential new hires.
In dissenting from the majority, Justice Samuel Alito foresaw “sex” being redefined for purposes of Title IX, the federal law aimed at providing equal opportunities for women and girls in educational settings—including interscholastic athletics.
Not two months later, Alito proved prophetic when U.S. District Court Judge David C. Nye issued a preliminary injunction on Idaho’s bill. Nye relied on Bostock to assert that Title IX, like Title VII, prohibits discrimination against transgender individuals. Nye argued this even though Title IX’s sponsor, the late Sen. Birch Bayh of Indiana, made clear in the early 1970s that the bill’s purpose was to advance the rights of biological women.
Attempting to quiet debate on the meaning of “sex” once and for all, the Democrat-controlled House passed the controversial Equality Act in February. If the Senate likewise passes the bill (which is unlikely as long as the filibuster in place and Democrats hold only 50 seats) and President Joe Biden signs it into law—as he has promised to do—the Equality Act would amend Title IX to apply with equal force to discrimination based on both biological sex and gender identity. This would undermine Title IX’s purpose of providing equality to women.
However, the equal protection clause of the 14th Amendment applies whenever laws draw distinctions between classes of persons. The Supreme Court has upheld gender-based classifications that serve important government objectives and reflect reasoned judgments rather than prejudice.
Courts have held that maintaining sex-segregated sports programs serves the government’s legitimate interest in ensuring greater athletic opportunities for women. Also, accounting for biological realities reflects reasoned judgments rather than prejudice for two reasons:
First, girls typically cannot compete fairly with boys. A look at several states’ high-school track-and-field records reflects this: In the shot put, for instance, boys’ marks are frequently 20 feet longer than those of their female counterparts—and that’s with boys throwing a metal ball that’s 4 pounds heavier.
Second, medical studies show that even male athletes who take hormones to “transition” to female retain many of their physical advantages. Studies found that biological males who undergo testosterone suppression for a year still have advantages in strength and muscle mass.
The equal protection clause does not require that things that are different be treated as though they are legally indistinguishable. Transgender athletes are indeed different from athletes whose gender identity matches their biological sex. While some activist judges may choose to ignore biological realities, state legislators working to ensure fairness in interscholastic sports are by no means laboring in vain.
—Ray Hacke, an attorney at Pacific Justice Institute, has advocated for women’s sports before state legislatures in Idaho, South Dakota, and Missouri. Additional reporting by Angela Lu Fulton.
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