Just as there is no “I” in team, there is no “F” (i.e., female) in LGBTQ+. That means that, in Joe Biden’s haste to show his politically correct bona fides to the LGBTQ+ community, he may have in the process harmed female college athletes throughout America. It began, as overreach often does, with good intentions.
On January 21, 2021, Biden’s first full day in office, he issued 17 executive orders, one of which was entitled “Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” Part of it reads:
“Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. … All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”
On first impression, this may seem innocuous enough. After all, discrimination is bad, right? In fact, the executive order would appear to be all the more justified because, as noted in the order itself, it seemingly has the imprimatur of a recent Supreme Court decision behind it.
In that case, Bostock v. Clayton County, Justice Neil Gorsuch, writing for a 6-3 majority, ruled that Title VII of the Civil Rights Act of 1964 protects employees against discrimination based on their sexual orientation or gender identity because that also constitutes discrimination “because of sex” as prohibited by Title VII. According to Justice Gorsuch’s majority opinion, that is so because employers discriminating against gay or transgender employees accept certain conduct (e.g., attraction to women) in employees of one sex but not in employees of the other sex. (There were two very lengthy dissents. One was authored by Justice Alito, joined by Justice Thomas. Another was authored by Justice Kavanaugh. Much of the debate turned on the definition of “sex” as used in the 1964 statute. The words “sex” and “sexual” appear nearly 600 times in the various opinions.)
The Executive Order states: “Under Bostock‘s reasoning, laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972 … prohibit discrimination on the basis of gender identity or sexual orientation.” In other words, based on President Biden’s specific reference to the Bostock case, he obviously believed that he was him the will of the Supreme Court when he issued his Executive Order. The problem is that the Bostock case dealt with Title VII transgender discrimination in the workplace, while Biden’s Executive Order stretches out the import of Bostock much further to encompass Title IX issues as well.
The Bostock majority decision makes no reference to Title IX whatsoever. That law provides that “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.” Title IX applies to all educational institutions, both public and private, that receive federal funds (which is to say virtually every college). While Title IX does not require identical sports, it does require that both males and females have equal opportunity to participate in sports programs. It also requires that an equal amount of scholarship dollars be awarded.
The impact of Biden improperly conflating the ruling in Bostock with Title IX title protections means that transgender women (i.e., biological men who identify as women) now have full rights to participate in female collegiate sports.
However, not only did the majority opinion not address Title IX at all (or sports for that matter), but it was also careful to limit the scope of its holding:
“We do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.”
While the majority of the Court took a blinkered approach to Title IX and female collegiate athletics, the issue was clearly on the minds of the dissenters. As Justice Alito wrote in dissent, the Court’s decision:
“[It] threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports. The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male.”
Perhaps one could remonstrate that this is merely a theoretical concern, but there are several problems with this. First, one could argue that, while President Biden’s executive order is very unfair to female college athletes, that level of unfairness is tolerable so long as the number of transgender female athletes doesn’t rise too significantly. That is a weak argument, however, especially given the rapidly increasing number of transgender women in America.
Second, it’s not merely theoretical anyway because the advantage of biological males over biological females is real. In Connecticut, two biological males have collectively won 15 women’s state high school championship titles (previously held by ten different Connecticut girls) against biologically female track athletes. At the college level, a transgender woman switched from competing on the men’s track team to the women’s track team at Franklin Pierce University after taking a year of testosterone suppressants. While this student had placed eighth out of nine male athletes in the 400-meter hurdles the year before, the student won the women’s competition by over a second and a half.
A transgender woman won the Texas girls’ state championship in high school wrestling in 2017. Another example is Laurel Hubbard, a transgender New Zealand weightlifter, who transitioned to female at the age of 40. Since her transition, she has won a number of international championships – often blowing away the field in the process.
There are just a handful of examples. Abigail Shrier, the author of “Irreversible Damage: The Transgender Craze Seducing Our Daughters,” tweeted that President Biden’s Executive Order “eviscerates women’s sports” and places a “‘new glass ceiling’ over girls.”
There can be little doubt that women cannot match the speed and strength of men in most sports. Allyson Felix has won more gold medals (6) than any female sprinter in American history. Her best time in the 400 meters in 49.26 seconds. Based on 2018 data, that time was beaten more than 275 times by high school boys in the U.S. alone.
It is true that transgender women’s performances generally decline along with their testosterone levels, but not every male advantage disappears with the corresponding decrease in testosterone. Some advantages remain – such as their bigger bone structure, greater lung capacity, and larger heart size. Moreover, even that assumes that trans-women take enough medication to reduce their testosterone to “normal” female levels. According to one study, only one-quarter of transgender women who received medication for testosterone suppression actually achieved levels considered within the usual female range. For these reasons, there is very little reason to believe that a trans woman competing against females would ever be a “fair fight.”
Some feminist athletic icons have applauded the right of trans women to participate in female sports. Take the case of Lindsey Hecox, a trans woman who last year sought to become eligible for the women’s cross-country team at Boise State University. Her challenge to an Idaho law prohibiting her from trying out for the men’s track team was temporarily enjoined in an 87-page ruling by U.S. District Judge David Nye. “I’m a girl and the right team for me is the girls’ team,” said Hecox.
Hecox’s legal challenge was supported by Billie Jean King, two-time women’s soccer World Cup Champion Megan Rapinoe; Candace Parker, a two-time Olympic gold medalist in women’s basketball; and Katie Sowers, a former offensive assistant coach with the San Francisco 49ers. King left no doubt about where her preferences lay:
“I’m proud to support all transgender athletes who simply want the access and opportunity to compete in the sport they love. The global athletic community grows stronger when we welcome and champion all athletes — including LGBTQI athletes.” For her legal efforts, Outsport Magazine named Ms. Hecox the Transgender Advocate Athlete of the Year.”
One wonders, however, if athletes such as King, Rapinoe, and Parker would be so magnanimous if they themselves had been defeated in their chosen sports by other athletes who were born as men.
This issue is only going to become more prominent with the passage of time. Both in 1964 (when Title VII of the Civil Rights Act was enacted) and 1972 (when Title IX was enacted), the very word “transgender” was virtually non-existent in our vocabulary. However, according to the Williams Institute, over 1.3 million adults in the United States identified as transgender in 2016, which was more than twice as high as the number just five years earlier. This trend has undoubtedly continued since this study, and it will continue in the future, especially as the historical stigma of being transgender dissipates.
The debate as to whether trans women should be able to compete in college and high school female sports is not new and will continue. What is new is the legal imprimatur given to these transgender athletes by President Biden and his unilateral circumvention of the judicial process via his first day Executive Order.
Peter Meltzer is a lawyer in Philadelphia, specializing in commercial litigation, real estate and creditors’ rights. He is also an author about both legal and nonlegal topics, and has been a frequent guest on the Michael Smerconish program. His nonlegal books include: “The Thinker’s Thesaurus”, which has sold over 100,000 copies, “So You Think You Know Baseball? A Fan’s Guide to the Rules”, named one of the top baseball books of the year by ESPN, and books about the presidents of the United States and about rock and roll music from 1965-1975. His legal articles have been cited by courts from around the United States.