David French: The legal foundation of women’s sports is under fire

What is the legal foundation for women’s sports? It’s a simple question with a surprisingly complex answer. After all, the most potent federal statute supporting parallel men’s and women’s sports leagues would appear — on its face — to also prohibit separate leagues. Title IX of the Educational Amendments of 1972 states, “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.”

The act contains explicit exceptions — such as permitting fraternities and sororities and beauty pageants and protecting the liberty of religious educational institutions — but its language tracks that of Title VI of the Civil Rights Act of 1964. Title VI prohibits race discrimination in federally funded educational programs using virtually identical language, declaring, “No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of or be subjected to discrimination under any program or activity receiving federal financial assistance.”

In the realm of athletics, however, these two statutes have traditionally worked in remarkably different ways. Race segregation in athletic programs is a legal and cultural taboo. There are no legally segregated white and Black football leagues, for example, and if a school decided to create a Black league and a white league, it would face an immediate civil rights complaint. Excluding a football player from a team simply because of his race is unlawful discrimination.

But this is not the case when it comes to sex. The result of Title IX was not the large-scale creation of coed sports leagues, where men and women have an equal opportunity to compete in the same events, where the best man or woman makes the team, and the best man or woman wins the race. Instead, Title IX has resulted in the expansion of women’s sports into an enormous, separate and parallel apparatus, where women by the millions compete against one another, winning women’s titles in women’s leagues.

Why this difference? Why have two statutes with such similar language created such different realities? Because sex is substantially different from race, and treating sex the same as race would be a profound injustice for women in sports.

Let’s go back to the language of the statute itself, which speaks in terms of both “participation” and “benefits.” If you treat people of different races the same, people of all races can both participate and receive the benefits of participation in athletics. If you treat people of different sexes the same, the reality is very different.

The evidence is overwhelming that there is a significant average difference between male and female athletic performance, including at the most elite levels and even when female athletes receive funding, training and nutrition comparable to that of the best male athletes. In a 2020 article in The Duke Journal of Gender Law and Policy, the authors, Doriane Lambelet Coleman, Michael J. Joyner and Donna Lopiano, observed that “depending on the sport and event, the gap between the best male and female performances remains somewhere between 7 to 25 percent; and even the best female is consistently surpassed by many elite and nonelite males, including both boys and men.”

The authors walk through a number of examples of disparate performance, but here’s one: Vashti Cunningham is one of the best female high jumpers in the world. Her best jump places her in the world’s top 10 among females. But in 2019 alone, 760 American high school boys jumped higher than she did when she was in high school.

Citing this fact is not intended in any way to denigrate women or women’s sports. (One of the great joys of my life has been watching my two daughters play sports.) But I raise such facts because they’re legally important.

This month, an en banc panel of the U.S. Court of Appeals for the 2nd Circuit heard arguments in a prominent case about whether Title IX prohibits transgender girls from participating in women’s sports. The case involves claims by four former Connecticut female high school track athletes who lost races to two transgender (natal male) athletes, including state championships.

The plaintiffs in the case sought a declaration that the state sports league’s policy permitting transgender girls to compete in women’s athletics violated Title IX by “failing to provide competitive opportunities that effectively accommodate the abilities of girls” and failing to provide “equal treatment, benefits and opportunities for girls in athletic competition.” The plaintiffs argued that Title IX was intended to grant women and girls the “chance to be champions,” not just a right to compete.

Last year, a three-judge panel of the appellate court rejected the plaintiffs’ claims. The panel didn’t reject the “chance to be champions” theory entirely, but Judge Denny Chin, writing for the court, said that the plaintiffs had not claimed “an injury in fact” (and thus lacked standing to bring their claims) because “all four plaintiffs regularly competed at state track championships as high school athletes, where plaintiffs had the opportunity to compete for state titles in different events.” Indeed, as the court notes, one of the plaintiffs even beat the transgender athletes in a 100-meter race in 2019. Under the court’s reasoning, the chance to compete was a “chance to be a champion.”

But then something unusual happened. The entire appeals court asked to hear the case. This month, the court heard oral arguments, and a decision is expected soon. The oral arguments were dominated by questions of standing — whether a loss of a championship should be considered a legally recognizable injury, an injury that courts should or could address.

To be clear, the question was not whether the transgender girls did anything wrong — casting any aspersions on their participation in the races would be profoundly unjust. They ran the race in accordance with the rules of the race. The question was whether the rules were wrong.

The transgender athletes intervened in the case, with the aid of the ACLU, and argued that “Title IX does not require sex-separated teams or an equal number of trophies for male and female athletes.” They emphasized that the plaintiffs “repeatedly outperformed” the transgender athletes “in direct competition.”

But the argument is not that transgender athletes will always win, but rather that if schools replace sex with gender identity as the relevant criterion for participation, then the statutory sex-based promises of participation and benefits in educational programs will be undermined. (Gender identity, as the ACLU defined it, is a “medical term for a person’s ‘deeply felt, inherent sense’ of belonging to a particular sex.”)

After all, when we survey the performance gap between male and female athletes, is that gap best explained by the differences in gender identity between the competitors or the differences that are inherent in biological sex? And if those differences are best explained by biological sex rather than gender identity, then any rule that wipes out biological sex as the determining factor in eligibility will undermine both the practical and legal basis for women’s sports.

I’m not a catastrophist. I hate rhetoric that declares that women’s sports will be “destroyed” by the inclusion of a small number of trans women in athletic competition. I hate even more any demonization or disparagement of the trans athletes themselves. When they compete according to the rules of the sport, they are doing nothing wrong. But legal definitions do matter, especially when they are rooted in hard facts, such as the systematic, documented performance gap between the sexes.

All people are created equal, and possess equal moral worth, but we are not all created the same. To protect equal opportunity, there are times when the law should recognize differences. And in the realm of athletics, if we want to both secure and continue the remarkable advances women have made in the 51 years since Congress passed Title IX, it’s important to remember that sex still matters, and sex distinctions in the law should remain.

This article originally appeared in The New York Times.