opinion | The legal basis of women’s sport is under attack
The transgender athletes intervened in the case, with help from the ACLU, and argued that “Title IX does not require gender-segregated teams or an equal number of trophies for male and female athletes.” They emphasized that the accusers “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, the legal sex based promises of participation and benefits in education 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 gender.”)
After all, when examining the performance gap between male and female athletes, is that gap best explained by the differences in gender identity between the participants or the differences inherent in biological sex? And if those differences are best explained by biological sex rather than gender identity, then any rule that eradicates biological sex as the determinant of eligibility will undermine both the practical and legal basis for women’s sports.
I am not a catastrophe. I hate rhetoric that proclaims that women’s sports will be “destroyed” by the inclusion of a small number of trans women in athletic competitions. I hate even more any demonization or disparagement of the trans athletes themselves. When they compete by 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 human beings are created equal and have the same moral worth, but we are not all created equal. To protect equal opportunity, there are times when the law must recognize differences. And in the field of athletics, if we are to preserve and continue the remarkable strides women have made in the 51 years since Congress passed Title IX, it’s important to remember that gender still matters and gender distinctions in the law must remain.
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