Seth Barry-Hinton

After the Supreme Court’s decision in Bostock v. Clayton County, which held that Title VII of the 1964 Civil Rights Act protects transgender people from workplace discrimination, the political battles and culture war around transgender people will likely shift onto new terrain. One of these battles is expected to center on the rights of transgender people to participate in sports in the gender category they identify with at the high school, collegiate, and professional levels. Recently, Representatives Tulsi Gabbard and Markwayne Mullin introduced a bill intended to prevent transgender women and girls from participating in women’s sports, using the language of Title IX.[1] This follows a transgender athlete’s lawsuit challenging an Idaho law barring trans girls from participation, and a group of cisgender athletes’ lawsuit against a Connecticut school district allowing trans girls to participate.[2] These battles are the expression of a deeper conflict that extends beyond civil rights or sports law, interrogating the meaning and significance of sexual difference.

This conflict has generated an interesting coalition of anti-transgender forces: conservative, evangelical Christians like the Heritage Foundation, who generally oppose expanding LBGTQ+ rights, have allied with radical feminist organizations, such as the Women’s Liberation Front (WoLF), who specifically view expanding transgender rights as a threat to the rights of cisgender women and girls.[3]

This coalition relies on two primary arguments. The first is an argument based on statutory intent. The meaning of “sex” in Title IX was intended to be a binary biological division and would not include people who live and are understood as a gender different from the one they were assigned at birth (or, for that matter, intersex people, who might identify as any particular gender but have a “mix” of primary and secondary sex characteristics). Gabbard, in her explanation of her proposed bill, relied heavily on this “original intent” claim. It is worth noting that the anti-trans coalition is clearly not relying on a plain-meaning argument in this view; one can easily contrast Justice Gorsuch’s interpretation of Title VII in Bostock, which focuses strictly on the practical use and definition of the word “sex.”

The other key argument is one from fairness, which was raised in both of the aforementioned lawsuits and in Gabbard and Mullin’s statements on their proposed legislation. The anti-trans coalition argues that being “assigned male at birth” (AMAB), or having a testosterone-based hormone profile, innately leads to athletic advantage.[4] “Females” are inherently weaker and slower than “males,” goes the claim. Allowing transfeminine athletes to participate alongside cisgender women would therefore rob the latter of their ability to excel in sports, on the assumption that the former would naturally rise to the top. An alternative version of this argument is that deceptive men will exploit self-identification policies to more easily accrue the trophies, accolades, and opportunities that sports achievements provide.

This language of fairness and equality might seem reasonable under “commonsense” assumptions about sexual difference, but it falls flat on both a theoretical and practical level. I assert that even without delving into gender theory, philosophy of science, and empirical evaluations of sexual difference—which has been done extensively elsewhere—this argument fails on its own merits.[5]

First, there are different kinds of fairness when it comes to sport. While a level playing field for publicly performing personal excellence might be one way to frame sport, this ignores many of the other possible functions of sport. Lindsay Hecox, the transgender plaintiff in the Idaho case, puts it well: “I, like all athletes, participate in sports for the same reasons as my peers: to challenge myself, to improve my fitness, to engage socially, and to be a part of a team.”[6] Thus, the individualist and instrumentalist view, that sport is a way of achieving professional success and public accolades, is only one possible view among many.

Furthermore, LGBTQ+ participation in sports is extremely low as a result of bullying and discrimination.[7] This demonstrates two things. First, it undermines the notion that being transgender is some privileged status undeserving of protection. Second, it illustrates that there may be other fairness concerns at play besides the recognition of cisgender women’s athletic achievement (assuming that these interests are actually conflictual, which they may not be). If the value of sports is very high, it may be that encouraging greater athletic participation by transgender and nonbinary people, as well as LGBTQ+ people more broadly, is worth whatever marginal costs might occur for specific cisgender individuals.

The anti-trans argument also appears weaker when considering the broader scope of current transgender rights debates. This same coalition of conservatives and anti-trans feminists seeks to deny minors access to gender-affirming medical care, such as puberty blockers, which would have a significant impact on athletic performance under the coalition’s own assumptions about the importance of sexual difference.[8] In short, anti-trans activists seek to ensure that transgender girls go through a testosterone-based puberty, and then limit their athletic possibilities and life choices on the grounds that they have undergone a testosterone-based puberty.

These sorts of inconsistencies, and the narrow view of fairness that the coalition prioritizes, make more sense when examined as panic rather than justified legal concern. In actuality, we have seen a trickle of high-profile cases where transgender athletes outcompeted cisgender ones, not a deluge. Transgender people occupy such a narrow and marginalized subset of the population that the apparent primary concerns – overall fairness and recognizing cis women’s athletic achievements – quickly fall flat.

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[1] James Walker, Tulsi Gabbard Pushes Bill to Block Transgender Girls from Women’s Sports, Newsweek (Dec. 11, 2020, 7:57 AM), https://www.newsweek.com/tulsi-gabbard-bill-block-transgender-girls-women-sports-1554068.

[2] Gillian R. Brassil and Jeré Longman, Who Should Compete in Women’s Sports? There Are ‘Two Almost Irreconcilable Positions’, The New York Times (Aug. 19, 2020), https://www.nytimes.com/2020/08/18/sports/transgender-athletes-womens-sports-idaho.html.

[3] Heron Greenesmith, A Room of Their Own: How Anti-Trans Feminists Are Complicit in Christian Right Anti-Trans Advocacy, Political Research Associates (July 14, 2020), https://www.politicalresearch.org/2020/07/14/room-their-own.

[4] Brianna January and Brennan Suen, As Trans Americans Face Record Violence, Right-Wing Media Have Been Flooded with Stories Attacking Trans Athletes, Media Matters for America (Oct. 30, 2019, 10:07 AM), https://www.mediamatters.org/facebook/trans-americans-face-record-violence-right-wing-media-have-been-flooded-stories-attacking.

[5] Iris Marion Young, Throwing Like a Girl: A Phenomenology of Feminine Body Comportment Motility and Spatiality, 3 Human Studies 137 (1980); Katherine Kornei, This Scientist Is Racing to Discover How Gender Transitions Alter Athletic Performance, Including Her Own, Science (Jul. 25, 2018, 9:00 AM), https://www.sciencemag.org/news/2018/07/scientist-racing-discover-how-gender-transitions-alter-athletic-performance-including.

[6] Lindsay Hecox, Anti-Trans Laws are Preventing Trans Women from Playing on Women’s Sports Teams, Teen Vogue (May 14, 2020), https://www.teenvogue.com/story/anti-trans-law-women-sports.

[7] Research Brief: LGBTQ Youth Sports Participation, The Trevor Project (June 23, 2020), https://www.thetrevorproject.org/2020/06/23/research-brief-lgbtq-youth-sports-participation/.

[8] Katelyn Burns, Why Republicans Are Suddenly in a Rush to Regulate Every Trans Kid’s Puberty, Vox (Jan. 29, 2020, 5:57 PM), https://www.vox.com/identities/2020/1/29/21083505/transgender-kids-legislation-puberty-blockers.