Doriane Coleman is a professor at Duke Law School and a former elite track athlete. Martina Navratilova is an 18-time Grand Slam winner and member of the International Tennis Hall of Fame. Sanya Richards-Ross is an NBC Sports analyst and a four-time Olympic gold medalist.
The Supreme Court on April 22 agreed to take up the question whether Congress intended for the word “sex” in employment discrimination law to include sexual orientation and gender identity. Congress, however, seeks to resolve this issue itself, and not just in the employment context. The Equality Act, introduced by House and Senate Democrats at a news conference last month, proposes to amend almost all of the major federal civil rights statutes, including Title VII, to secure equality nationwide for the LGBTQ community. The legislation would make it unlawful everywhere to discriminate on the basis of sexual orientation or gender identity in employment, education, housing and public accommodations.
The Equality Act’s provisions are much needed and long overdue — with one caveat.
We urge lawmakers to pass the bill without abandoning Title IX, the hugely popular, long-standing (since 1972) carve-out to existing anti-discrimination law. Through its implementing regulations, Title IX not only permits but often requires educational institutions that receive federal money to provide separate programs and opportunities for females based on sex. This is necessary because sex segregation is the only way to achieve equality for girls and women in competitive athletics.
In its current form, the Equality Act would do significant damage to Title IX and to the Amateur Sports Act, which governs sports outside of educational settings. The new legislation would amend the 1964 Civil Rights Act by redefining “sex” to include “gender identity.” Without an exception, the definition would apply to all amendments to the 1964 act, including Title IX. Most schools, colleges, the NCAA and the Olympic Committee would be affected because they receive federal funds and operate in interstate commerce.
The legislation would make it unlawful to differentiate among girls and women in sports on the basis of sex for any purpose. For example, a sports team couldn’t treat a transgender woman differently from a woman who is not transgender on the grounds that the former is male-bodied. Yet the reality is that putting male- and female-bodied athletes together is co-ed or open sport. And in open sport, females lose.
Some Equality Act advocates argue that this is hyperbole and outdated stereotype. They say, as the ACLU has, that there is “ample evidence that girls can compete and win against boys.” They are wrong. The evidence is unequivocal that starting in puberty, in every sport except sailing, shooting and riding, there will always be significant numbers of boys and men who would beat the best girls and women in head-to-head competition. Claims to the contrary are simply a denial of science.
Team USA sprinter Allyson Felix has the most World Championship medals in history, male or female, and is tied with Usain Bolt for the most World Championship golds. Her lifetime best in the 400 meters is 49.26 seconds. In 2018 alone, 275 high school boys ran faster on 783 occasions. The sex differential is even more pronounced in sports and events involving jumping. Team USA’s Vashti Cunningham has the American record for high school girls in the high jump at 6 feet, 4½ inches. Last year just in California, 50 high school boys jumped higher. The sex differential isn’t the result of boys and men having a male gender identity, more resources, better training or superior discipline. It’s because they have androgenized bodies.
Advocates of the Equality Act who know sports or aren’t science deniers make a different argument. They say that it’s time to shift our focus from supporting female-bodied athletes for whom Title IX has already done a lot of work, to supporting transgender women and girls who need our help more. Even if the legislation results in some females being displaced from the podium, they say, it’s enough that they get to participate. This is a strange time to stake out that political ground, given that the nation is in the midst of acknowledging the extent to which discrimination against females based on our sex-specific biology continues to have profound effects on our lives and prospects.
It’s also an unnecessary trade-off. Sports already include transgender women and girls in their programs. If they haven’t transitioned physically, they’re included without condition in the male category. As the NCAA’s inclusive practices have shown, this category isn’t based on identifying as a man; it’s based on having male biology. And if the athletes are at least a year into their hormonal transition — the medical standard of care — they can compete in the female category.
We are personally concerned that this requirement insufficiently accounts for the sex-linked physiological advantages that drive male dominance and the performance gap. We will continue respectfully to press this point. But our views notwithstanding, the fact remains that it is on the books as an effort to accommodate the competing claims for fairness and inclusion.
Sport is an unusual if not unique institution. It is a public space where the relevance of sex is undeniable, and where pretending that it is irrelevant, as the Equality Act suggests, will cause the very harm Title IX was enacted to address.
We support transgender women and girls and their right to equality, and we recognize their personal struggle. We don’t worry that boys and men will feign transgender identity to gain an advantage. But we do hope that lawmakers won’t make the unnecessary and ironic mistake of sacrificing the enormously valuable social good that is female sports in their effort to secure the rights of transgender women and girls.