FAIR PLAY? WHO CAN REALLY SAY?

Introduction

Inclusivity and Kindness Incantation

Before I begin any discourse on legal and scientific scholarship surrounding the debate on transgender inclusion in competitive sport, may we listen to these five tenets of allyship for allies of Transgender people: (1) respect transgender people’s names and pronouns, (2) protect their confidentiality, particularly in the presence of the media, (3) listen and be supportive, (4) acknowledge every journey is different and every trans person’s journey is unique, and (5) educate yourself as trans people are not responsible for educating you.[1] These five tips for trans allies were created by attendees of the 2013 LGBT Sports Summit and serve as a guiding document for trans allies in athletics. We are discussing athletes and trans athletes who are, first and foremost, human beings who deserve dignity, respect and kindness above all.

Outline

This paper is intended to educate readers on current policy at the international, collegiate, and state levels, and scientific studies that have helped shape trans athletes’ participation in athletics. Following a general overview of the political landscape, we will then examine how Title IX and its various interpretations are applicable to trans athletes’ rights as they pertain to competing in collegiate athletics.

Political Landscape

The IOC’s New Trans-Inclusion Framework

Three years in the making, the IOC’s new trans-inclusion framework is essentially a reversal of the entity’s previous stance. The 2022 framework encourages a move away from testosterone-based restrictions, places the burden of establishing guidelines for trans inclusion on individual sports, and concludes that sporting bodies should not assume that transgender women have an inherent advantage over cisgender women.[2] Until now, the policy required all women to have testosterone levels under 10 nanomoles/liter and all trans female athletes to be on testosterone-suppressing medication for at least a year. This was highly scrutinized during the 2015 Beijing Olympics when the first openly trans woman, New Zealand weightlifter Laurel Hubbard, was allowed to compete, while two cisgendered female Namibian runners were disqualified due to their testosterone levels.[3]

The drastic shift away from testosterone-based science is certainly an idealized version of what “true” inclusion looks like for trans athletes in elite sports, but some argue that the new framework is “too-little-too-late” to fix the IOC’s previous guidance. In 2003, the IOC was allowing trans athletes to compete only if they had undergone complete gender reassignment surgery, including genital surgery.[4] It was not until Canadian cyclist Kristen Worley sued the IOC claiming the rules were a human rights violation did the organization revisit its guidelines.[5] These guidelines would inadvertently define the playing field for women, intersex, and trans athletes for years to come.

Notably, there is no mechanism of enforcement for the new guidelines, and the policy does not undo the damage caused by the widespread implementation of the 2015 policy. Codifying testosterone-based science as the true indicator of who is eligible to be considered a girl has set a precedent in which womanhood continues to be policed at all levels. Anne Lieberman, the director of policy and programs for Athlete Ally, one of the organizations the IOC consulted when developing the new guidelines, has said,

[a] lot of sport governing bodies at both national and grassroots levels will look to the IOC to set standards… but I don’t think that until they were sitting in front of athletes and hearing from other organizations working in the space, [they realized] just how wide-reaching an impact their guidelines are having.[6]

With the new framework, there is no longer a default policy that international federations can look to for guidance. Meanwhile, any forward progress will happen despite the IOC and not necessarily because of it.

NCAA’s Updated Guidelines

The NCAA also recently released an update to its policy, likely as a response to the IOC’s new framework.[7] The NCAA Board of Governors voted in support of a sport-by-sport approach for transgender participation to purportedly “align transgender student-athlete participation for college sports with recent policy changes from the United States Olympic and Paralympic Committee and International Olympic Committee.”[8] President Emmert even went as far as acknowledging “80% of U.S. Olympians are former college athletes” and that the updated policy provides “consistency” and “further strengthens the relationship between college sports and U.S. Olympics.”[9]

The modifications came down midseason, very likely due to the pushback regarding Penn swimmer, Lia Thomas. The NCAA still required Thomas to maintain testosterone levels below 10/nmol/L in order to continue competing. In response, USA Swimming also updated its policy for determining eligibility. USA Swimming tailored its guidelines to be more restrictive. USAS now requires testosterone levels of 5 nmol/L as well as 36 months of testosterone-suppressive medication for trans females to be eligible to compete in the women’s division—the longest wait time of any sport governing body internationally.[10] Thomas recorded the top times in the country in the 200-yard and 500-yard women’s freestyle. Under the NCAA’s new policy, Thomas would need to be in compliance with USA Swimming’s criteria in order to participation at the NCAA championships.[11]

State Policies Around Transgender Inclusion in Sports at the High School Level

In addition to International Committee frameworks, NCAA eligibility guidelines, and Title IX itself, transgender sports participation is governed by inconsistent laws and regulations throughout the United States. At the high school level, guidance varies by state-level legislation, policy or rulemaking, and in the absence of this, by each high school athletic association’s guidelines.

There are currently 10 states with no state guidance on transgender sports participation.[12] These states are home to approximately 13.4% of the estimated 150,000 transgender youth ages 13 to 17 within the United States.[13] There, regulations/rules concerning participation for trans athletes are up to the judgement of individual schools, which creates complicated scenarios whereby two transgender students in bordering schools may face wholly different regulations when attempting to participate in consonance with their gender identity.[14] See the above figure for a national overview of each state’s policy pertaining to the participation of transgendered athletes in youth sport.[15]

What does the Science Tell Us?

Ever since transgender athletes were allowed to compete as Olympians, intense scrutiny has followed into whether there is a biologically unfair advantage over cisgendered athletes. It must be of note that few studies have been done on trans people’s athletic performance and there are even fewer published studies on trans athletes competing at the elite level. But we will examine the results of Dr. Timothy Roberts’[16] research and another conducted by sports scientist Tommy Lundberg.[17] Both studies investigated the effects of gender-affirming treatment on muscle function, size, and composition, along with the physical output procured during athletic performance.

Dr. Roberts reviewed the fitness test results and medical records of 29 transmen and 29 transwomen who started hormone therapy while in the United States Air Force. They found that trans women who underwent hormone therapy for one year continued to outperform cisgender women, though the gap largely closed after two years. Transwomen could perform 31% more pushups in 1-minute, 15% more sit-ups in 1 minute, and ran 21% faster at the out-set of the study. While no advantage presented itself in transwomen after undergoing treatment for a full two years, trans women continued to run 12% faster. Dr. Roberts did suggest that the difference in running times needs additional perspective. In an interview, he explained, “…to be in the top 10% of female runners, you have to be 29% faster than the average woman. And to be an elite runner, you’ve got to be 59% faster than the average cis woman.”[18] So how to really account for the remaining 12% advantage remains to be seen when determining fairness regarding elite athletic performance.

Dr. Harper, a medical physicist at Britain’s Loughborough University, rejects this notion of an “unfair” advantage in sports like track because of the many other factors that go into shaping how an athlete performs (e.g., hand-eye coordination, technique, and endurance).[19] Harper’s study found that testosterone suppressants reduced hemoglobin levels in trans women to that of cis gender women. She contends this eliminates any particular advantage otherwise had in speed. However, the study concludes that while hormone therapy decreased strength, LBM, and muscle area, values remain above those observed in cisgender women even after 36 months.

Lastly, Lundberg comprehensively assessed changes in strength, muscle mass and muscle composition with gender-affirming hormonal therapy over the course of 12 months. The study also looked at its effects on skeletal muscle, heart, vessels and adoptive tissue. According to the results of the study, thigh muscle volume increased 15% in transgender men, which was paralleled by increased quadriceps cross-sectional area (CSA) (15%) and radiological density (6%). In transwomen, the corresponding parameters decreased by -5% in muscle volume and -4% in CSA. Density remained unaltered. Transmen increased their strength over the study and transwomen generally maintained their strength. While apparently not good news for those touting policies of codifying testosterone levels or even general principles of inclusivity, Lundberg’s study only examined untrained transgender women and men. It is unclear how the results of such a study could be adequately, and justly, applied to elite athletes at both the collegiate and international levels.

Fulfilling Title IX’s Promise

Title IX states that no one “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.”[20] The meaning of “sex” in this statue most certainly pertains to the categorical designations “male or female” based on the physiological differences therein. “On the basis of”— like “because of” in Title VII”—incorporates a but-for causation. Title IX would seemingly apply where factors contributed to differential treatment of an individual so long as it would not have occurred except for the person’s sex. Basically, a school cannot avoid liability based on the way it treats women overall, likely including trans women.

U.S. Department of Education’s Office for Civil Rights Notice of Interpretation

President Joe Biden issued an Executive Order on Inauguration Day directing that Executive Branch agencies should apply the Supreme Court’s reasoning in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), to interpret statutes forbidding discrimination because of sex to cover claims of discrimination because of sexual orientation or gender identity “so long as the laws do not contain sufficient indications to the contrary.”[21]

On June 16, 2020, his office doubled down. U.S. Department of Education’s Office For Civil Rights issued a Notice of Interpretation explaining that it would enforce Title IX’s prohibition on discrimination on the basis of sex to include: (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity.[22] The Department’s interpretation stems from the landmark U.S. Supreme Court decision in Bostock v. Clayton County, issued one year ago from the date of this notice’s publication, in which the Supreme Court recognized that it is impossible to discriminate against a person based on their sexual orientation or gender identity without discriminating against that person based on sex.

Bostock v. Clayton and Title IX

In Bostock, The Supreme Court interpreted Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of sex,” to include discrimination because of sexual orientation or transgender status.[23] In this case, the Court combined appeals from the 2nd, 6th and 11th Circuit Courts of Appeals involving two gay men and a transgender woman alleging wrongful discharge under Title VII. The 6-3 vote upheld that discrimination against any employee because they are gay, lesbian, or transgender is necessarily at least in part because of their sex and thus covered by the statute’s protections.[24] The text required this result because sexual orientation and gender identity necessarily meant treating the same acts differently based on the actor’s sex assigned at birth.[25] While the decision only directly interpreted Title VII, its reasoning rather clearly pointed to any statute prohibiting discrimination “because of sex.”

The DOJ’s memo advising the Supreme Court’s holding be applied when interpreting Title IX relied on primarily two arguments. First, the DOJ asserted the plain language prohibiting gender discrimination within both statutes was interchangeable. Second, it noted that Title VII and Title IX apply to instances of individual discrimination. The Notice listed “numerous” lower federal court decisions that were issued over the past year taking this position, including the most recent ruling by the 4^th Circuit Court of Appeals in Grimm v. Gloucester County School Board, 972 F. 3d 586 (4^th Cir. 2020). The Supreme Court denied cert after the Notice was announced, thus preserving the 4^th Circuit’s decision. Additionally, The U.S. Court of Appeals for the 9th Circuit recently heard arguments in the State of Idaho’s appeal in Hecox v. Little from a district court decision finding that the state’s ban on transgender girls playing sports, the first such ban to be enacted, violates the constitutional rights of the transgender girls as well as Title IX.

The Supreme Court has also repeatedly considered aspects of Title IX in relation to Title VII, so there is precedent to apply Bostock, a Title VII ruling, to a potential Title IX case.[26] For example, in its 1992 decision Franklin v. Gwinnett County Public Schools, the Court drew upon its Title VII precedent recognizing sexual harassment as a cognizable form of sex discrimination to similarly recognize sexual harassment as actionable under Title IX.[27] As precedent reflects, the Court has both drawn from Title VII jurisprudence to inform its analysis of Title IX, and, at other times, has distinguished between the two statutes. This neither confirms, not entirely excludes, the possibility of the Court potentially applying its reasoning in Bostock to a Title IX claim.

Conclusion

Cisgender and transgender women are both historically marginalized groups. Title IX was imposed in order to remedy and correct disparate treatment of women; Congress came to this decision partly because federally funded schools had excluded young women as a group while providing young men with unfettered opportunities. The script should not flip to providing these opportunities and protections to only cisgender women. Currently, transgender women face more severe discrimination in all sectors of society, including education and athletics. Extending athletic opportunities to trans athletes would have a substantially positive impact on trans students’ well-being and generally further inclusivity in sport.

Transgender girls and women competing in sex-segregating sports may result in a minor disadvantage for some cisgender female athletes. But any evidence that conclusively demonstrates trans women have a decisive and consistent athletic disadvantage over well-trained cisgender women has simply not been proffered.

Allowing trans women to continue competing with their peers in women’s sports while studies and evidence are compiled is very much aligned with the spirit of Title IX and of the IOC’s policy on inclusivity for the betterment of sport. The statute seeks to protect individuals from exclusion and discrimination based on gender, while accepting that, at times, doing so may reduce some opportunities offered to members of a relatively more privileged class.

To echo the majority in Grimm, “[t]he proudest moments of the federal judiciary have been when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past.”