Unfair to girls

A federal court in Idaho may have signaled the beginning of the end for girls’ and women’s sports.

Judge David C. Nye handed transgender athletes a key victory on Aug. 17 in the fight over whether college and high-school sports’ governing bodies must let biological males compete in women’s athletic events: The Trump appointee issued a preliminary injunction blocking Idaho’s Fairness in Women’s Sports Act (FWSA), a law prohibiting males from competing as “females” in high-school and college sports within the state.

Lindsay Hecox, a male runner who identifies as female and wishes to compete for Boise State University’s women’s cross-country team, sued to overturn FWSA, which Gov. Brad Little signed in May. Another plaintiff in the case is an unnamed female high-school athlete who feels having to prove her biological sex is an invasion of her privacy.

A few states’ governing bodies for interscholastic sports still classify athletes based on the gender listed on their birth certificates. Idaho was the first to bar biological males from girls’ and women’s sports under state law. (Disclosure: In my capacity as a constitutional law attorney, I testified in favor of the FWSA before the Idaho Legislature in February.)

Nye’s ruling did not strike down the FWSA entirely: The plaintiffs must win a permanent injunction for that to happen. However, to obtain a preliminary injunction, a plaintiff must show he is likely to win his case. A preliminary injunction typically (though not always) foreshadows a court’s ultimate ruling: In blocking the FWSA, Nye determined the plaintiffs would likely get Idaho’s law declared unconstitutional.

The judge saw legal writing on the wall following the U.S. Supreme Court’s 6-3 ruling in Bostock v. Clayton County: In that June decision, the nation’s highest court declared that Title VII’s prohibition of employers’ discriminating “on the basis of sex” also extends to discrimination against gay and transgender persons. Title IX, the federal law aimed at ensuring equal opportunities for women at educational institutions—including participation in interscholastic athletics—likewise prohibits discrimination “on the basis of sex.” Courts thus use Title VII cases as a lens for interpreting Title IX.

The irony is twofold: First, the federal government enacted Title IX in 1972 specifically to advance the cause of biological women. Second, Title IX is the reason why high schools, colleges, and universities across America have women’s teams in the first place.

Federal and state courts have consistently recognized that segregating sports programs by sex is the best way to ensure equal opportunities for women in athletics: “Open competition [with males] would, in all probability, relegate the majority of females to second-class positions as benchwarmers or spectators,” Rhode Island’s federal court wrote in 1979, upholding a high school’s decision to keep a male athlete out of girls’ volleyball.

In Connecticut, three female track and field competitors currently face an uphill climb in their own court battle to secure the right to compete exclusively against other girls: Federal Judge Robert Chatigny ruled in May that the biologically female plaintiffs could not refer to transgender females (i.e., boys who identify as girls) as “biological males.” In so doing, Chatigny tipped his hand as to how he’s likely to rule. The female athletes’ attorneys have asked the judge to recuse himself.

In Idaho, Nye ruled the way he did in part because the NCAA and the Olympics let transgender athletes compete as members of their chosen gender. Both require males to undergo testosterone reduction treatments before they can compete as females.

A study published in late 2019, though, indicates that male athletes retain physical advantages over females even after undergoing a year’s worth of hormonal treatments. Nye’s ruling ignores physiological realities and is a bad sign for women’s sports.