Trans Athletes Are Not the Problem

What the Supreme Court got wrong about women’s sports

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When I was a kid, my mother came home from one of my little sister’s soccer games and told me this story. A team from a neighboring town had a girl who people back in those days would have called a tomboy. She had a boyish appearance, and was taller and stronger than the other girls. Out on the pitch, she dominated.

The parents of the opposing team were frustrated, and they let their frustration turn to suspicion. They started making rude and inappropriate comments about this girl. Some of them even claimed she must be a boy, that it wasn’t right for “him” to be out there, playing with their daughters.

The girl could hear the comments, whether from the parents or their daughters repeating them. Eventually, she must have decided she’d had enough, because right there in the middle of the field, in front of all the players and parents and coaches and referees, she pulled down her shorts and her underwear and flashed the crowd.

Thirty years later, I was reminded of that story while reading the Supreme Court’s opinion in *West Virginia v. B.P.J., which held that states could legally ban all trans girls from competing in girls’ sports. *Advocates for trans inclusion in sports have long stressed that bans on transgender athletes, particularly trans women and girls, will actually end up creating regimes that police all women’s bodies in invasive and degrading ways. Definitively proving a competitor is “biologically female” may require genetic testing, hormone testing, or even a physical genital exam.

Moreover, given the relative scarcity of trans athletes at elite levels — only 0.002 percent of collegiate and 0.001 percent of Olympic athletes are trans — the burden of such regimes will fall disproportionately on cisgender women. That makes the decision in West Virginia v. B.P.J. deeply ironic. Having set out to protect women’s sports, the Court forgot to protect women.

What’s really at stake?

Before unpacking that point, let’s make clear what this case was and wasn’t about.

It was NOT about whether there are real, physical differences between men and women. There are.

It was NOT about whether those differences require the existence of separate leagues and events for women and girls, so that they can participate fairly and safely in competitive sports. They do.

Finally, it was NOT even about whether the word “sex” in Title IX refers to biological sex, nor whether organizations that receive Title IX funding can use biological sex, rather than gender identity, as the criterion for determining whether an individual is allowed to compete in a particular event. It does, and they can.

All nine Supreme Court Justices, across the political spectrum, agreed on all of these points. This agreement matters, because if your only exposure to this issue is via cable news or social media, you could be forgiven for thinking the Left is just out to destroy the very idea of sex differences, or that trans rights activists, however well-intentioned, were going to undermine women’s sports as such.

But no, the reality is much more anodyne. The real debate centers on the Equal Protection Clause of the Fourteenth Amendment. It asks whether flat bans on trans athletes violate equal protection, whether laws that discriminate against trans people should be considered a kind of sex-based discrimination, and what kind of evidence courts should consider before passing judgment in cases like this.

Equal protection in theory and practice

The first thing to understand about any equal protection case is that it matters what kind of discrimination we’re talking about. Laws that treat people differently based on immutable characteristics are more suspect, and therefore held to a higher standard. Whereas a law that distinguishes between people based on their profession only needs to be reasonable, one that discriminates on the basis of race or sex has to clear a higher bar.

The Court’s most conservative Justices, Thomas and Alito, don’t see this as an issue of sex-based discrimination. In Thomas’s concurrence, he basically says that a transgender woman is really a man with a mental health problem, and medical conditions are the kind of mutable characteristic that don’t trigger heightened scrutiny.

The Court’s liberals obviously disagree. As Justice Sotomayor writes,

the ban at issue classifies based on sex. West Virginia seeks to separate sports teams based solely on an individual’s sex identified at birth. As a result, cisgender girls, whose sex identified at birth is female, can play on girls’ teams whereas transgender girls, whose sex identified at birth is male, cannot. The difference, undoubtedly, is sex.

The majority didn’t feel the need to decide that question. In their view, the outcome would be the same either way. I highlight it here for two reasons. First, because the Court left it open, we will definitely see a future case focused on this issue. And second, the level of scrutiny determines the tightness of the “fit” that the government must show between the objective it’s trying to achieve, and the means that it’s chosen to achieve it.

The crux of the matter

It’s around that second point that the whole controversy revolves. The Court’s conservatives argue that the states have a significant interest in promoting athletic opportunities for women and girls, which requires appropriate measures to ensure the safety and fairness of female sports competitions.

Barring biological males from female sports is substantially related to that interest. The majority disputes the plaintiff’s claim that a flat ban is overbroad. They note that

27 States — as well as the International Olympic Committee, the United States Olympic and Paralympic Committee, and the NCAA — have banned all biological males from competing in women’s and girls’ sports.

They also point to the practical difficulty of determining eligibility on a case by case basis.

Particularly in the sports context, determining the effects of the puberty blockers and hormones taken by transgender athletes — and then comparing each of those transgender athletes’ abilities to those of other individual biological males and individual biological females in the relevant sport — would be an almost impossible task for a judge to perform on an equitable basis.

The legislatures and the schools are better equipped — and under the Constitution, are the more appropriate entities — to assess the competing medical and scientific considerations and draw appropriate lines.

Interestingly, the Court’s liberals seem to agree with that last point. Indeed, their position is that it’s incumbent on legislatures and schools to come up with rules that fairly balance the interests of all athletes, whether cis- or transgender. They can’t simply throw up their hands and bar all trans athletes because it might be more expedient.

The liberals contend that it really isn’t so difficult to make determinations of safety and fairness on a case by case basis. For example, West Virginia passed its flat ban in 2021, but prior to that it allowed transgender athletes to compete on teams that matched their gender identity. Since at least 2016, schools used a formal assessment to determine whether “fair competition” would be impacted by a given student’s participation.

If an opposing school thought a student shouldn’t be allowed to compete, it could bring a challenge to the West Virginia Secondary Schools Athletic Commission’s board of directors. The board would then consider a number of factors, such as the student’s age, her strength, and the nature of the sport, and would make a determination about the degree to which her inclusion might adversely impact fair competition.

And while the IOC does maintain a flat ban on transgender females, it allows trans men to compete with other men, even though trans men have required testosterone treatments to complete their transition, and testosterone is a banned performance enhancing drug.

The World Anti-Doping Agency carved out a Therapeutic Use Exemption (TUE) that allows trans athletes, among others, to receive testosterone treatments without running afoul of doping rules. TUEs entail a rigorous medical clearance process to ensure fairness, thanks to which trans men like Chris Mosier (pictured below) have been able to compete with other men, despite being “biologically female.”

Chris Mosier at the Collision 2018 conference (Wikimedia Commons)

Of course, biological females are not considered a threat to safety or fairness in competition with men. That’s the basis for the IOC’s asymmetric treatment of trans men and trans women. But Mosier’s case does show how inflexible sex policing can have absurd results. Under the laws of West Virginia, Idaho, and other states, he would be required to compete against women, creating exactly the kind of safety and fairness problems the majority says it’s trying to avoid.

The Court’s liberals also aren’t impressed with the flat bans introduced by the US Olympic & Paralympic Committee and the NCAA. As Justice Sotomayor points out,

those two organizations did so after the President issued Executive Order No. 14201, which threatened to take away federal funding from any educational program that allowed transgender girls and women to participate on girls’ and women’s sports teams…

In other words, we have no idea what other, more flexible, processes they might have adopted, if it weren’t for President Trump’s threats to impose financial penalties.

Back to the future

The girl who exposed herself on the soccer pitch was responding to an informal version of sex policing. But history shows us that formal sex verification can be no less fraught.

Consider the case of Caster Semenya, an elite South African runner who was assigned female sex at birth and has always identified as a woman. She also has a rare difference of sex development (DSD) called 5-alpha-reductase deficiency, which causes her body to produce testosterone in the normal male range.

After sporting authorities raised questions about her gender, she was forced to undergo medical testing, barred from competition while her tests were pending, and later required to take medication to suppress her body’s natural testosterone levels. The medication caused abdominal pain and made her “constantly sick,” and she eventually challenged the new rules in court. She lost at the Court of Arbitration for Sport, and has since retired from international competition rather than submit to unwanted medical interventions.

Semenya’s was only the most recent case in a decades-long saga of invasive sex policing in female sports. After 1930s Czech track and field star Zdeněk Koubek became a trans man upon his retirement, officials began to fear that other women’s champions might secretly be men. This led Nazi doctors at the 1936 Berlin Olympics to insist on the first medical examinations for athletes whose sex was contested.

Among the first women subjected to the new testing regime was Missouri native Helen Stephens, the fastest female sprinter of her day. She was a cisgender woman who, like Semenya, had always identified as female. But her tomboyish features and her crushing victory in the 100 meters attracted the attention of the international press, who outright accused her of being a man. Her own mother had to come to her defense.

Most of the international pressure to test Stephens’s womanhood came from the Polish press, probably because the woman whose record Stephens broke was Poland’s Stanislawa Walasiewicz. Ironically, after Walasiewicz’s death in 1980 she was revealed to have been intersex (though she too was assigned female at birth and always identified as such).

From 1966 to 1967, female athletes were subjected to “nude parades,” where they had to strip naked and present themselves before a panel of doctors. From 1968 to 1999, this practice was replaced with mandatory chromosome testing. Women who passed were issued “certificates of femininity” without which they could not compete. After sustained criticism of the tests for being humiliating and discriminatory against intersex women, they were eventually dropped.

Here’s the point: despite the majority’s claim that a bright-line rule is the most practicable way to promote competitive opportunities for women while ensuring athletes’ safety, history shows how an inflexible regime can be both under- and over-inclusive. Relying solely on sex assigned at birth would admit women with DSDs whose bodies produce testosterone in the male range, while excluding trans girls whose hormonal levels are on par with most biological females.

These kinds of regimes do nothing to stop people from policing women’s bodies or their appearance. On the contrary, they encourage it. Any woman who is intersex, gender nonconforming, or otherwise fails to embody stereotypically “feminine” traits is automatically suspect.

This is why the majority misses the mark. Their concern for the value and integrity of women’s sports is admirable, but the states’ solution resolves little, while placing an unfair burden on the vast majority of female athletes. They must exhibit culturally “feminine” qualities, even when these exist in tension with the inborn or acquired physical traits that give them a competitive advantage.

The liberals’ point is simply that states and schools should be required to at least recognize this complexity, and craft a policy flexible enough to accommodate it. States and athletic organizations have administered such policies before, and some administer them still. That’s not too much to ask. A girl shouldn’t have to bare herself in exasperation just so the adults will let her play.