Sports are social conventions through and through. There is nothing natural or predetermined about who gets to play and what one must do to win. But how sports are structured says a lot about what society values and whose interests it sees as top priorities. Hence the culture war over girls’ sports. This paper seeks to identify what society values about organized sports and suggest how a society that strives to prioritize girls as highly as boys and transgender girls as highly as cisgender girls should allocate athletic opportunities.1
To date, the loudest voices in the fight over girls’ sports have been the most extreme. On one side are those who argue that transgender girls are girls and must always be treated as such.2 On the other side are those who argue that sex is determined at birth and can never be changed.3 The arguments are absolutist both in the sense that they call for categorical inclusion (or exclusion) of transgender girls in girls’ sports and in the sense that they hold across different contexts outside of sports.
This is a mistake. The analysis of transgender girls’ participation in girls’ sports must be qualified and contextual. Transgender inclusion in sports is different from transgender inclusion in prisons. Transgender inclusion on Little League teams is different from transgender inclusion in elite sports. Moreover, inclusion in a world in which transgender girls physically dominate cisgender girls is different from inclusion in a world in which transgender and cisgender girls are more evenly matched.
This paper’s focus is on sports and on what is at stake for participants and society more generally when society allocates athletic opportunities to transgender and cisgender girls. It identifies the benefits that organized sports provide to participants and nonparticipants. It then offers a normative argument for how these benefits should be allocated and explores what these normative goals mean for the structure of girls’ sports and the participation rights of transgender athletes. The paper considers not only whether transgender girls should be included in girls’ sports—and if so under what conditions—but also whether girls’ sports, as a distinct category, should continue at all.
Part I identifies the three core benefits of organized sports: (1) basic benefits, (2) special benefits, and (3) group benefits. The basic benefits of sports are the physical and psychological advantages received by all those who participate. The special benefits of sports are the prizes, recognition, and rewards received by only the athletic winners. The group benefits of sports are the benefits that nonparticipants receive from sports. These benefits include both the pleasure fans get from seeing something difficult done well and, more significantly, the enhancement to self and social esteem that members of a socially salient group gain from having one of their own succeed. Parts II–IV consider how a society that cares equally about transgender and cisgender girls, and seeks to provide equivalent benefits to both, should structure athletic opportunities.
Part II focuses on the basic benefits of sports. It argues that all individuals are equally entitled to the basic benefits of sport: the physical and psychological benefits that flow from participating rather than winning. Moreover, this part contends that if society cared about sports only because of the basic benefits they provide to participants, there would be no reason to distinguish between cisgender and transgender girls and little reason to distinguish between the sexes in sports at all.
Part III focuses on the special benefits of sports: the prizes, recognition, and scholarships that make sports so valuable for a lucky few and which are—more than the basic benefits—the focus of fighting over athletic resources. Unlike the basic benefits, the special benefits must be distributed based on merit to retain their meaning and value. The hard question is how to determine who should compete against whom and how to define the categories from which winners are drawn. This part contends that while society might be able to shift to unisex competition categories as the basis for allocating special benefits, to the extent that sex-segregated categories remain in place, they must be enforced fairly. The part then turns to the question at the heart of the fight over transgender access to women’s teams: what does fair enforcement of the “female” sports category require? It argues that the female sports category is both an ability category and a status category and, as such, its confines cannot be determined without considering the group benefits that flow to transgender and cisgender girls.
Part IV focuses on the group benefits of sports. It begins from the premise that transgender and cisgender girls are equally entitled to the group benefits of sports and considers what participation rules best further this goal. First, the paper considers eligibility rules that divide the female athletic category into cisgender and transgender divisions. It concludes that for transgender girls, such a separate-but-equal approach is not equal. Next, the paper considers eligibility rules that unite transgender and cisgender girls and explores the effects of inclusivity under three possible empirical realities: (1) transgender girls are no better on average or at the extreme than cisgender girls, (2) transgender girls are better on average than cisgender girls but not better at the extreme, and (3) transgender girls are better at the extreme and disproportionately win athletic prizes and scarce resources. The paper argues that only under the last condition does transgender girls’ inclusion in girls’ sports reap group benefits for transgender girls at the expense of comparable group benefits for cisgender girls and only then are restrictions on transgender girls’ participation warranted.
Structuring athletics in a way that optimizes benefits for both transgender and cisgender girls requires understanding what society values about organized sports. Yet, even with such understanding, translating social values into organizational structures is complicated because different values call for different rules. The paper concludes by identifying which values dominate in which athletic contexts and suggesting context-specific eligibility rules that treat trans and cis girls with equal concern and respect.
I. WHAT IS AT STAKE
The fight over access to athletic opportunities and resources is heated because much is at stake for participants and for the social groups with which they identify. This part describes the benefits that flow from participation in organized athletic competition. First, there are internal and individualistic health benefits that all participants receive simply from playing. I refer to these as basic benefits.4 Second, there are external and individualistic benefits that a lucky few winners receive in the form of prizes, awards, recognition, and scholarships. I refer to these as special benefits.5 Third, there are benefits to nonparticipants because of their group membership. They include benefits that flow to those who identify as fans. More importantly, they also include benefits that flow to those who socially identify with the winners. I refer to these collectively as group benefits. In the remaining parts, I consider how these benefits should be allocated and what the implications are for the structure of girls’ sports.
A. Basic Benefits
Organized sports are widely associated with a range of physical and psychological benefits for participants.6 These basic benefits flow, or are believed to flow, to all participants simply from playing. Skill level and competitive success are irrelevant.
Most direct are the benefits to participants’ physical health. Moderate exercise has been shown, for example, to improve bone density and to lower the risks of heart disease, diabetes, and some cancers.7 Physical activity is also associated with improved mental health, specifically, lower levels of depression and higher levels of creativity.8 The health benefits of physical activity are so clear and extensive that some scholars have argued that women’s athletic participation should be treated as a public health issue.9
Somewhat more tenuous are the benefits to participants’ character. Participation in organized sports is widely thought to develop character by teaching skills such as teamwork, leadership, and discipline.10 The evidence for such benefits is more anecdotal and less rigorous than for the physical benefits. Nonetheless, they are widely ascribed to and are often cited as a reason to encourage children’s participation in organized sports. Indeed, the International Charter of Physical Education and Sports adopted in 1978 by the United Nations Educational, Scientific and Cultural Organization (UNESCO) proclaimed that “[e]very human being has a fundamental right of access to physical education and sport” because such activity is “essential for the full development of [their] personality.”11
More tenuous still are the benefits to participants’ life choices. Although any causal link is unproven, much has been made of the correlation between athletic participation and better lifestyle choices and outcomes for children. Students participating in high school sports have higher grades, better attendance, and higher graduation rates than their nonathlete peers.12 They are also more likely to attend and graduate from college.13 Teenage student-athletes are less likely to smoke cigarettes,14 and teenage girls who participate in sports are less likely to engage in sexual activity or become pregnant.15
B. Special Benefits
Organized sports also provide some participants—those who win—with a distinct set of particularly valuable external benefits. Winners enjoy the excitement, pride, and joy of victory. Sometimes, they also enjoy more concrete and tangible benefits. They may set records, win prizes, qualify for more prestigious teams or leagues, and garner attention and acclaim for their accomplishments.
For high school athletes, preferential treatment by colleges is a particularly valuable and sought-after special benefit for winners. The recent lawsuit against Harvard University alleging discrimination against Asian Americans revealed the magnitude of the preference.16 According to the plaintiffs’ analysis of Harvard’s admissions data, athletes who were ranked 4 on a scale of 1 to 6 had a 70% chance of acceptance, while nonathletes with the same score had a .076% chance of admission.17 This preference is consistent with that found almost twenty years earlier by James Shulman and William Bowen. In their book The Game of Life, Shulman and Bowen looked at admissions data for thirty selective colleges and found that athletes were give a 48% boost in admissions—a boost that was considerably higher than that for legacies (25%) and for racial minorities (18%).18
Moreover, the very best athletes receive not only admissions help but also financial rewards. Approximately 180,000 students annually, the top 1%–3% of high school athletes, receive over $3.6 billion in scholarship support from NCAA schools,19 with an average scholarship amount of $18,000.20 The best of this group, approximately 2% of college athletes, receive opportunities to play professionally.
C. Group Benefits
Even for those who do not play, organized sports confer benefits. Most general are the benefits—excitement and fun—that fans get from watching their favorite athletes and teams play and win. More discrete, and more significant from a social justice perspective, are the benefits that accrue to members of socially salient groups as a result of seeing members of their own group celebrated and rewarded. As Mark Kelman explained, nonparticipants who identify socially with athletic winners receive benefits from increased self-esteem, from role modeling, and from the reduction of cultural subordination.21
Self-esteem is mediated both by one’s own treatment as an individual and by the treatment received by members of one’s group.22 One’s self-esteem may be enhanced by seeing members of one’s group perform well and be treated with respect and adulation, as occurs when members of one’s own group are athletic stars.23 Conversely, self-esteem may be undermined by seeing members of one’s group devalued and disrespected.24 Moreover, associational self-esteem may be particularly important for members of subordinated groups.25
Role models encourage healthy behaviors and life choices by those who identify with them.26 Individuals are more likely to “model themselves after members of their own groups than outsiders.”27 As a result, athletic nonparticipants benefit from having in-group role models who encourage athletic participation and healthy habits. As Kelman explained, female athlete role models not only encourage younger girls to participate in sports—and reap the accompanying health benefits—but also model and encourage a broader range of positive behavior—goal focus, intensity, competitiveness—that is advantageous for girls across contexts.28 While the benefits to self-esteem probably require some parity in how female and male stars are treated, the benefits from role modeling seem to require only the existence of a critical mass of group-identified winners.”29
Finally, the celebration of athletic stars enhances the status and esteem accorded to all members of their socially salient group and can change the social meaning and status of group membership. The celebration of female athletes, for example, reinforces a vision of women as autonomous agents that is at odds with more traditionally sexist conceptions of women as passive sexualized objects for a heterosexual male gaze.30 Celebrating female athletes’ strength and agency chips away at cultural sexism for all women and enhances women’s social regard and status.
Sports provide individuals and groups with important benefits. Much is at stake, therefore, in the distribution of athletic opportunities. The next three parts consider how the basic, special, and group benefits of sport should be allocated—to whom, on what terms, and for what social ends—and consider what these normative goals mean for the structure of girls’ sports.
II. BASIC BENEFITS
For participants, the basic benefits of sports are neither scarce nor rival.31 All athletic participants receive the health and character benefits that flow from organized sports, and one person’s receipt of them does not deprive another of the same benefits. Nonetheless, because the basic benefits of sports flow from participation opportunities that are often limited, the basic benefits of sports become in effect both scarce and rival. In this part, I consider how a society concerned about the basic benefits of sports should, under conditions of resource scarcity, structure and allocate athletic opportunities for transgender and cisgender girls.
One way to distribute scarce benefits is based on merit, where merit is defined by some relevant measure of ability or effort. Jobs, for example, are awarded based on qualifications and performance. Sometimes benefits are distributed in this way to achieve some independent external end. Imagine scarce spots in cardiac surgery residency programs or scarce government contracts to mechanical engineers to rebuild the nation’s bridges. In both cases, there are external reasons related to public health and safety that justify allocating the scarce resources based on merit as measured by relevant performance. Other times, resources are distributed based on merit to encourage particular kinds of behavior. Consider a teacher trying to motivate her students to read. Allocating prizes based on numbers of books read—in other words, based on merit as measured by effort—would serve her goals well.
A merit-based distribution of sports’ basic benefits—where merit is measured by athletic ability or performance—is difficult to justify on either ground. The basic benefits of sports are akin to core health and education resources. Distributing such health benefits to those who are most athletic—and likely healthiest—seems unlikely to further any important social goal. Instead, doing so would likely weaken society overall by degrading the status of the weakest and increasing the gap between the privileged and the poor. While awarding the basic benefits to those who are physically strongest probably would incentivize health-conscious behavior among some individuals, it would also punish and deprive those who are the weakest and most infirm. Awarding opportunities for health and well-being to those who already possess both, and denying opportunities to those who lack them, seems at best nonsensical and at worst unjust. As Jane English observed, “[i]f Matilda is less adept at, say, wrestling than Walter is, this is no reason to deny Matilda an equal chance to wrestle for health, self-respect, and fun.”32
There is perhaps more normative appeal in allocating the opportunity for basic benefits based on need. Under this view, those who need such benefits to reach basic levels of health and functioning are most entitled to them. Martha Nussbaum and Amartya Sen are perhaps most strongly associated with this view. They have argued that a just society must distribute resources so as to guarantee that all individuals have the basic capabilities necessary for a good human life—chief among which are health and thought33 “as cultivated by an adequate education.”34 Norman Daniels similarly has argued that health care must be distributed so as to give everyone the ability for “normal species functioning,”35 with more resources going to those who need more to maintain or achieve normal functioning.36
As a practical matter, need does sometimes drive resource allocation decisions in education and health care. While state constitutions require that all children be given a basic minimum education, the federal Individuals with Disabilities Education Act (IDEA) requires that resources be allocated based on need.37 The goal of the IDEA is to provide students with handicaps with “a free appropriate public education” in the “least restrictive environment.”38 What this means in practice is that schools must devote extra resources to handicapped children to permit them to achieve the same basic educational goals that most nonhandicapped students can achieve with far fewer resources.39 Disabled students who need more resources to achieve proficiency are given more resources—they are given preferential treatment as compared to other students who would benefit from the resources but “need” them less.
In health care, too, under both private and state-sponsored insurance plans, more resources and benefits go to those who need them to achieve basic levels of health and functioning. Indeed, rather than capping all individuals at the same level or expense of care, insurance programs direct far more resources to those whose impairments—from hearing loss to mobility problems to the need for dialysis—require more interventions to achieve basic levels of functioning.40
Transgender advocates, at times, seem to support a need-based distribution of athletic opportunities. Transgender girls, they emphasize, are an “‘especially vulnerable population’”41 with a particularly strong need for the basic benefits that sports confer.42 Such need, they suggest, creates a privileged entitlement to athletic resources.
While perhaps conceptually appealing, a need-based allocation of athletic opportunities is infeasible. First, it is not clear how to measure need or what type of need should count. Is need to be measured against a baseline of physical health, against a stable level of emotional well-being, or against particular performative athletic skills? Second, need assessments—whatever metric is chosen—must be individualized. Even if some types of group membership may be associated with particular vulnerabilities, it does not follow that all members of a group are more vulnerable or needy than non-group members. Individuals have varied group memberships, some associated with privilege and others with disadvantage. Membership in a particular group, such as being transgender, is not a good proxy for overall need. It is too simplistic to say that a transgender boy, by virtue of his gender identity, is more in need of the physical and mental health benefits of sport than a cisgender girl who is overweight or a cisgender boy suffering from depression. Yet individualized need assessments of all students seeking to participate in recreational school sports are not possible. Assessing and scaling the relative need of all students who might want to participate would be too costly and difficult.
Since a merit-based distribution is unappealing and a need-based distribution impractical, a third option is to give all students equal access to the basic benefits. Such a distribution is consistent with and bolstered by the widely shared view that all individuals have an equal moral entitlement to basic health care and education.
The idea that “everyone has a right to a minimum of ‘decent,’ ‘reasonable,’ ‘basic,’ ‘essential,’ or ‘adequate’ health care … commands widespread (though not universal) consensus,”43 explained law professor Einer Elhauge. Philosophers largely agree. In their book, Social Justice: The Moral Foundations of Public Health and Health Policy, Madison Powers and Ruth Faden argued that social justice requires that all individuals be provided with a sufficient level of health and a reasonable life span.44 According to John Rawls, a basic minimum of health care for all individuals is necessary for a stable democracy.45
A commitment to equal basic health care infuses public policy as well as political philosophy. As Erin Brown explained, a commitment to a basic minimum undergirds the patchwork of federal statutes that provide healthcare benefits for groups that might not be covered by employer-sponsored insurance, such as “Medicare, Medicaid, the Veterans Administration health system, TRICARE for active duty military and their families, the Emergency Medical Treatment and Active Labor Act (EMTALA), and, most recently, the ACA [Affordable Care Act].”46 Indeed, Representative John Lewis, urging his colleagues to vote for the ACA, appealed to their sense of justice: “We have a mission. We have a mandate. We have a moral obligation to lead this nation into a new era where health care is a right and not a privilege.”47
A similar commitment to a basic minimum exists in the context of education. Theorists contend that a basic education is foundational to good citizenship. As Debra Satz explained, “[e]ducation has long been recognized as a ‘foundation of good citizenship,’ a necessary condition for full membership in the political community.”48 Schools teach “future citizens to evaluate different political perspectives that are often associated with different ways of life.”49 Such civic education is critical, Amy Gutmann agrees, and “[t]he social stakes for liberal democracy … are high. Absent mutual respect, citizens cannot be expected to honor the liberal principle of nondiscrimination.”50
Access to a basic minimum education is in fact an individual right. Every state constitution includes an education clause obligating states “to establish and operate public schools that provide children with a basic minimum or adequate education.”51 Though the right to a basic minimum is not always realized, it is recognized.
While not going so far as to require that all students receive athletic opportunities, an equal-access approach recognizes and protects students’ equal moral entitlement under conditions of scarcity to the basic benefits of sport. One way to ensure equal access to athletic opportunities would be to make sports unisex and to reconfigure them so that sports require and reward more equally the abilities of both girls and boys.52 As Jane English has argued, “[w]e should develop a variety of sports, in which a variety of physical types can expect to excel.”53 Scholars focused on transgender athletes have made similar arguments. Irena Martínková, for example, has called for a shift to unisex sports that have been redefined to be “inclusive for athletes of all sexes.”54
In the real world, creating sports that equally recognize and reward the aptitudes of women and men is likely to be challenging. The very small number of sports that currently fall into this category—perhaps dressage, riflery, long-distance swimming, and car racing—hints at the difficulty of this endeavor. Encouraging people to adopt these newly configured sports is also likely to be challenging. Certainly, new sports do arise and gain popularity,55 but there is also a lot of stickiness in people’s athletic preferences. Indeed, the ten most popular sports in the world have been the same for the last ninety years.56 Certainly, the process of modifying or creating new sports and shifting athletic preferences, if possible at all, would take time.
A more practical, though certainly less perfect, way to ensure equal access to athletic opportunities would be to shift existing sports to a unisex model and have spots allocated by lottery rather than performance. Existing sports tend to favor and reward male attributes and abilities, and this may explain in part why men are more drawn to sports than women. Nonetheless, if schools were to create robust and diverse unisex athletic offerings that were open to all without regard to performance, girls and boys—both transgender and cisgender—would have access to the basic benefits of sports that while perhaps not perfectly equal was functionally and practically so.
It may be, though, that participants prefer sex-segregated teams—at least at times—even when participation is not performance based. Boys may prefer playing with boys and worry that girls will change the nature of their game. Girls may prefer playing with girls and worry that boys will marginalize or condescend to them. Girls may also feel that rules designed to protect them or the fairness of play in coed competitions are patronizing.57
Conceding to this reality, however, makes ensuring that participants have equal access to the basic benefits of sports more challenging. English has argued that under conditions of sex segregation, equal funding is key to equal access for girls.58 “Rights to the basic benefits dictate immediate changes in the distribution of our sports resources,” English explained, requiring “equal facilities—everything from socks to stadiums” and “equal incentives.”59 Girls’ and boys’ teams must, in other words, be the same in terms of the numbers of opportunities they provide students and the nature of these opportunities.
Most important when it comes to transgender students is category assignment. For transgender girls, equal access to the basic benefits of sports requires their access to and inclusion on girls’ sports teams. Requiring transgender girls to compete on boys’ teams would stigmatize them by labeling them as boys. It would also undermine the emotional health benefits of sport and likely discourage play.60 Requiring transgender girls to play in their own category would likely have similar effects. While segregation of cisgender girls and cisgender boys in sports is generally not viewed as stigmatic to girls, segregation of cisgender and transgender girls is, often, viewed as stigmatic to transgender girls.61 For transgender girls relegated to a “separate-but-equal” trans category, the basic benefits of sports would be undermined and diminished by the message that they are not in fact “real” girls.
For cisgender girls, transgender inclusion might affect their access to the special benefits of sport, but it should have no meaningful effect on their access to the basic benefits. Opposition to transgender girls’ inclusion in girls’ sports centers on the claim that if transgender girls compete directly against cisgender girls, the latter will lose. When it comes to the basic benefits, however, winning does not matter and prizes are not the point. The basic benefits come from playing and flow as readily from recreational sports as from elite-level sports. Including transgender girls on girls’ sex-segregated recreational teams—where opportunities to play are equally available to all regardless of sex or ability, and where girls’ and boys’ teams are equally funded—would not deprive cisgender girls of equal access to the basic benefits of sports.62
If society cared about organized sports only because of the basic benefits participants derive from them, there would be no reason to deny transgender girls access to girls’ sports, and the issue of transgender girls’ inclusion would probably not be terribly fraught.63 Transgender girls would need access to girls’ sports teams to have equal access to the psychological benefits of sports. Meanwhile, cisgender girls would lose little, if anything, by having girls’ sporting opportunities randomly distributed among a pool of potential participants that included both transgender and cisgender girls.
III. SPECIAL BENEFITS
What is at stake with athletic opportunities is not, however, only the basic benefits of sports. Indeed, the fight over transgender girls’ inclusion in sports is not primarily about access to the basic benefits; it is instead about who gets the special benefits of sports—the prizes, recognition, and rewards that go to only a few. When it comes to these benefits, distributions based on principles of equality or need hold little appeal. Only allocations based on merit—where merit is determined by performance—allow the special benefits to retain their meaning and symbolic value. On this, both sides of the culture war seem to agree.64 What is less clear is who should compete against whom.
This part considers three distinct eligibility categories within which merit-based allocations of special benefits could be made: unisex open categories, unisex ability categories, and sex-based categories. It argues that while a move to unisex categories—both open and ability-based—has advantages and avoids the difficulty of categorizing transgender athletes, such categories also have distinct problems both practical and legal. To the extent that society maintains sex-based categories, it must enforce them fairly. This part concludes by considering what fair enforcement of the “female” category means and how it affects transgender and cisgender girls.
A. Open Competition
The simplest and cleanest way to draw an eligibility category in sports is to allow all interested individuals to compete directly against each other in an open “best in show” competition. Merit is determined by ability and achievement. Open competitions of this sort are the norm for jobs and academic prizes, but they are rare in sports.65
Often there are strong objective and external reasons to want open competitions. When hiring heart surgeons, for example, hospitals have strong incentives to use open competitions: patients’ lives are at stake. Rather than choosing the best surgeon in an over-200-pound division and the best surgeon in an under-200-pound division, hospitals and patients want the best overall surgeon. The same is true when choosing pilots. Airlines want the best possible pilots rather than the best pilots from among different narrower eligibility groupings. In these contexts, and many others, there is something important at stake apart from the distributional benefit to individual candidates or the associational benefit to members of their social identity groups. Allocation of rewards based on open competition best serves these external interests.
This is not the case in sports. Open competition in sports is not required by external interests. Indeed, such external interests do not exist in the context of sports. Society neither suffers any great cost nor incurs any great risk if it eschews open competition in this context. There is nothing inherently valuable that is lost or endangered if society awards athletic prizes to the best athletes in narrower eligibility categories rather than to the best athletes in open competition. Lives will not be lost or endangered if athletic prizes are given to the best wrestlers weighing under 150 pounds and to the best wrestlers weighing over 150 pounds, rather than to the best overall wrestlers. Nor will any important knowledge be forgone, or social advance missed, if prizes are awarded to the best female and male tennis players rather than to the best overall tennis players.
There are, moreover, good reasons to eschew open competitions in sport. Biological girls and women would do far worse in open competitions than they currently do in sex-segregated competitions.66 Their share of the special benefits of sports would be significantly diminished.67 Transgender girls too would lose out. Certainly, they would win less often in open competitions than in sex-segregated competitions in which they were assigned to the “female” category. But additionally, and importantly, in open competitions transgender girls would lose out on the opportunity to signal through sports their social standing and acceptance as girls.
A move to open competition might even be legally impermissible. Although Title IX’s implementing regulations suggest that sex-segregated teams are not required,68 a school that eliminated them altogether would likely face a disparate-impact claim. The Supreme Court “has not yet decided whether Title IX allows for liability based on a disparate impact theory,”69 but some lower courts have recognized such claims.70 To the extent that a move to open competition resulted in girls and women as a group having a significantly smaller share of the special benefits of sports than boys and men, the move would be vulnerable to challenge. There is, in short, little to recommend the use of open unisex categories in sports and much to discourage it. Distributing special athletic benefits within ability-based eligibility groupings is an alternative.
B. Ability Categories
Increasingly, there have been calls for a move to unisex ability categories under which special benefits are awarded not to the best overall athlete but to the best athlete in a narrower category defined by ability-relevant characteristics—for example, height, weight, or age.71 As a general matter, ability categories have several advantages over open competition.72 Ability-based eligibility categories can make play more enjoyable for athletes by tightening contests and ensuring that competitors are evenly matched. They can also decrease the risk of injury.73 For fans, ability-based groupings can make contests more fun to watch.74
Advocates for unisex ability categories see them as a means of challenging the gender binary as well as perceived stereotypes of female athletic inferiority. As Maggie Mertens argued recently in the Atlantic, “[m]aintaining this binary in youth sports reinforces the idea that boys are inherently bigger, faster, and stronger than girls in a competitive setting—a notion that’s been challenged by scientists for years.75 A move to unisex ability categories also eliminates the challenge of categorizing transgender athletes—transgender athletes, like all athletes, simply compete in their ability category.
Ability categories can be drawn in innumerable ways. In a sport such as basketball, where height is relevant to performance, players can be divided into those under 5 feet, under 5 foot 5 inches, under 5 foot 10 inches, and under 6 foot 3 inches. Alternatively, players could simply be divided into those under 5 foot 10 inches and those equal to or greater than 5 foot 10 inches in height. Weight too is an ability-relevant characteristic in many sports. Players could be divided into those who weigh less than 100 pounds, less than 150 pounds, less than 200 pounds, and equal to or more than 200 pounds. Alternatively, players could be divided into fewer weight categories or many more. Wingspan, lung capacity, strength, flexibility, and speed are all ability-relevant characteristics that can be demarcated in any number of ways.76
All ability categories necessarily benefit some athletes more than others, and all are to some extent arbitrary. If height categories in basketball divide those who are shorter than 5 foot 10 inches from those who are equal to or taller than 5 foot 10 inches, those who are 5 foot 9 will be advantaged by playing in the shorter league. They will be more likely to excel and to stand out. Players who are 5 foot 10 inches will be disadvantaged. Being the shortest in their league will make it more difficult for them to dominate play. Malcolm Gladwell documented just this phenomenon and its impact in his study of age cutoffs for youth hockey players in Canada. Those players whose birthdays were just shortly after the age cutoff, and hence were the oldest in their competition category, fared better. The relatively older players scored more and received more attention, more encouragement, and ultimately more opportunities to play college and professional hockey.77
The fact that ability categories will necessarily favor some athletes more than others does not make them unfair to the losers. Individual athletes do not have an entitlement to categories being drawn in a particular way. Categories need not, and indeed cannot, equalize the chances of winning for all individual participants.
Nonetheless, unisex ability categories may be unfair to women as a group for the same reason that open competition is. Although ability categories can be drawn with an eye to increasing wins by female athletes, it will be difficult, if not impossible, to draw such categories so as to equally advantage women and men.78 To the extent that men dominate unisex ability categories, the categories will be vulnerable to the same disparate-impact challenge as are open athletic competitions. In short, moving to unisex ability categories to distribute the special benefits of sport is unlikely to be quick, simple, or uncontroversial.
C. Sex-Based Categories
To the extent that society continues to use sex-segregated competition categories as the framework for distributing the special benefits of sports—either on a permanent or interim basis—participants have a right to their fair enforcement. What “fair” looks like in this context is, of course, at the heart of the current debate over transgender girls’ inclusion in girls’ sports.
Thomas Pogge has offered three morally universal principles for assessing the fairness of social rules or states of affairs.79 According to Pogge, a morally universal framework must (1) “subject[] all persons to the same system of fundamental moral principles,”80 (2) assign the same fundamental moral benefits … and burdens to all,”81 and (3) formulate the fundamental moral benefits and burdens “in general terms so as not to privilege or disadvantage certain persons or groups arbitrarily.”82 William Morgan has offered a more contextually based framework for assessing fairness. According to Morgan,
fairness in sport demands that everyone in sport be treated equally, in other words, that the rules of sport apply to all in relevantly similar ways, and that the distribution of benefits and responsibilities in sport be determined by a competition open to all on the basis of the relevant talent and capabilities of would-be participants and in such a way that does not diminish the goods that sport delivers that draws people to them.83
Together Pogge’s and Morgan’s works suggest three core requirements for fair categories and eligibility rules in sports. The first is a requirement of consistency across contexts and contests. Consistency across contexts means that eligibility rules across sports must be based on the same underlying principles. Consistency across contests means that rules within sports must remain consistent enough over time to provide predictability and protect reasonable reliance interests. As Sarah Teetzel has argued in the context of an examination of Olympic eligibility rules, “the rules that specify precise eligibility requirements must be fair, just and consistently applied.”84 The second requirement is that those who are similar be treated similarly and those who are dissimilar be treated differently. As Sigmund Loland explained, “[r]elevantly equal cases ought to be treated equally, cases that are relevantly unequal can be treated unequally, and unequal treatment ought to stand in reasonable accordance with the actual inequality between cases.”85 The third requirement is that rules further the same moral or social goals for all individuals or groups. Eligibility rules must, in other words, promote the same social goals and provide the same goods for members of all social groups.
This section examines three distinct conceptions of the “female” sports category. It explores which conception is most fair in light of the three principles, and it considers what such a conception of the category means for transgender girls’ inclusion.
1. “Female” as a Gender Category
Sometimes the “female” sports category is conceived of as a gender identity category. According to this view, transgender girls must always be included because the limits of the category are determined by self-identification.86 This was, effectively, the position of the Obama administration. In a dear-colleague letter written by the Department of Justice and the Department of Education on May 13, 2016, the agencies explained that they “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.”87 What this means, they advised, is that “a school must not treat a transgender student differently from the way it treats other students of the same gender identity.”88 “When a school provides sex-segregated activities and facilities,” the departments emphasized, “transgender students must be allowed to participate in such activities and access such facilities consistent with their gender identity.”89 Moreover, a student’s gender identity, the agencies explained, was simply a matter of self-assertion—“there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity.”90 The Biden administration has endorsed a similar approach.91
As a historical, rather than normative, matter, reading the category “female” in sports as a category of gender self-identification is clearly erroneous. As Lindsay Pieper explained in Sex Testing: Gender Policing in Women’s Sports, the International Olympic Committee (IOC) has been engaged in sex testing of female athletes since the 1920s.92 She described a range of different tests used—from anatomical exams to chromosomal checks.93 All focus on the body and involve an external evaluator. Indeed, as Ruth Padawer explained in the New York Times, “[n]o governing body has so tenaciously tried to determine who counts as a woman for the purpose of sports as the I.A.A.F. [International Association of Athletics Federations] and the International Olympic Committee (I.O.C.). Those two influential organizations have spent a half-century vigorously policing gender boundaries.”94
It is not surprising, then, that the NCAA’s initial policy regarding transgender athletes, adopted in 2010, focused on biological markers rather than self-identification. The NCAA’s Inclusion of Transgender Student-Athletes policy provided that “[a] trans female (MTF) transgender student-athlete who is not taking hormone treatments related to gender transition may not compete on a women’s team.”95 With regard to trans athletes undergoing hormonal treatment, the Policy provided: “A trans female (MTF) student-athlete being treated with testosterone suppression medication for Gender Identity Disorder or gender dysphoria and/or Transsexualism, for the purposes of NCAA competition may continue to compete on a men’s team but may not compete on a women’s team without changing it to a mixed team status until completing one calendar year of testosterone suppression treatment.”96
In 2022, the NCAA, in response to controversy over transgender swimmer Lia Thomas’s success competing for the University of Pennsylvania, revised its transgender inclusion policy. The revised policy calls for transgender participation to be determined by the governing bodies of each individual sport.97 Yet the policy also provides for deadlines by which transgender student athletes need to document their “sport-specific testosterone levels.”98 In other words, although the NCAA has moved to a more sport-specific approach, it continues to view and define the female category in terms of objective, measurable biological criteria.
In response to the new NCAA policy, USA Swimming published its own policies for transgender inclusion.99 USA Swimming distinguishes between non-elite-level events and elite-level events. For the former, the governing body emphasizes the importance of sport as a “vehicle for positive physical and mental health”100 and allows swimmers to compete in the category consistent with their gender identity and expression. At the elite level, however, where the special benefits of sport are substantial, USA Swimming states its express concern with “providing a level-playing field for elite cisgender women.”101 Its policy requires transgender female athletes to present “[e]vidence that the concentration of testosterone in the athlete’s serum has been less than 5 nmol/L … continuously for a period of at least thirty-six (36) months before the date of Application.”102 Moreover, the policy provides that decision-making about eligibility will be made by a panel of “three independent medical experts.”103 When it comes to elite swimming, USA Swimming makes clear, “female” is not a gender-identity category. It never has been, in swimming or other elite athletic competitions.
Conceiving of the “female” athletic category as a gender-identity category would violate at least two of the three fairness principles for eligibility categories. It would violate the first fairness principle requiring consistent and predictable interpretations of the category. This ahistorical and atypical conception of the category would undermine the reasonable reliance interests that female athletes have in competing in a category determined and defined to some degree by biological markers. This is not to say that it is impossible or impermissible to change the meaning of a category, but fairness does demand some notice to participants and a period of transition. The conception would also violate the second fairness principle requiring that, to the extent distinctions are drawn, they treat those who are similar in relevant ways the same and those who are dissimilar in relevant ways differently. Defining the “female” category exclusively in terms of gender self-identification draws boundaries and distinguishes individuals only in terms of a criteria irrelevant to athletic performance.
2. “Female” as an Ability Category
More often, the “female” sports category is treated as a type of ability category. Under this conception, the “female” category is considered a proxy for a range of ability-relevant characteristics. This view of the “female” category as an ability category—in contrast to the view of it as an identity category—permeates both the public debate about transgender inclusion and the eligibility lines drawn by athletics’ governing bodies.
Those arguing for and against transgender girls’ inclusion both focus on whether transgender girls have physical advantages that take them outside the category’s appropriate ability range. Those arguing for transgender girls’ inclusion, for example, emphasize the wide variation of physical characteristics within the “female” sports category and contend that transgender girls are no more outliers than are certain cisgender girls. Gender/Justice, an organization whose mission it is to advance gender equity, emphasizes the ways in which cisgender athletes like Michael Phelps, Simone Biles, and Manute Bol all have distinctive and extreme physical characteristics that set them apart from others within their sex category. It then relies on these cisgender extremes to argue that transgender girls fit squarely within the female category.104 Dirk Smith, writing for Compete Magazine, made the point even more forcefully. He contended that “all the arguments debating ‘biology’ and ‘physiology’ in regard to performance advantages of trans athletes vs cisgender athletes on the basis of biological sex are moot given there is no statistical evidence to support any such conclusion.”105 Smith then went on to note, as did Gender/Justice, that Michael Phelps was a physical outlier among male athletes in much the same way that transgender women are thought to be outliers among female athletes. For transgender girls, as for Phelps, Smith argued, their physical differences do not put them outside the relevant ability category.
In a similar vein, but from a different vantage point, those arguing for transgender exclusion contend that transgender girls are too distinct in terms of ability-relevant characteristics from those in the girls’ category to be included. They focus on the non-overlapping levels of testosterone between women and men and the importance of male puberty for athletic performance. For example, Frank Mir and Terry Schilling, the parents of competitive cisgender athletes, explain their opposition to transgender women being permitted to participate in women’s sports on the grounds that “[b]iological male athletes have an insurmountable physical advantage over biological female athletes. They have greater muscle mass, bigger and stronger bones, and larger hearts and lungs than women.”106 Sean Ingle, writing for the Guardian, argued that “male puberty provides such a categorical advantage—in terms of muscle mass, strength, lean body mass and bone density—that it far exceeds the advantage of a few centimeters in arm length” that Michael Phelps may have had over other cisgender males.107 Similarly, Nancy Hogshead-Makar contended that going through male puberty gives transgender women such an insurmountable advantage over cisgender athletes that “[a]llowing transgender women to change the meaning of the women’s category makes as much sense as allowing 180-pound athletes into the 120-pound weight category … or allowing adults to compete against children.”108 Transgender girls, according to this argument, have ability-relevant attributes that take them outside the female category.
In line with this broader public debate, athletic governing bodies have for years defined the “female” category in terms of biological markers deemed relevant to athletic ability. Of particular focus have been testosterone levels. In 2015, the International Olympic Committee enacted a policy that limited eligibility to compete in the “female” category to athletes whose “total testosterone level … has been below 10 nmol/L for at least 12 months prior to her first competition.”109 In doing so, the IOC made clear that its objective was to “guarantee … fair competition” and that, toward this aim, “[r]estrictions on participation are appropriate to the extent that they are necessary and proportionate to the achievement of that objective.”110 In the same policy, the IOC rejected prior policies requiring anatomical changes as a requirement for “female” category inclusion because it found that such requirements were “not necessary to preserve fair competition.”111 The IOC’s new policy allows more deference to individual sports’ governing bodies to determine their own eligibility rules for female athletes, but both the IOC and the individual governing bodies continue to define the category in terms of ability-relevant criteria.112
Given this history, conceiving of the “female” athletic category as an ability category satisfies both the first and second principles of fairness. First, defining the boundaries of the sex category with regard to ability-relevant criteria is consistent with widely shared expectations of how the boundaries should be, and are being, drawn. Such an interpretation is, as a result, predictable (at least in terms of its general contours if not its specifics) and consistent with settled expectations about when one will be included in or excluded from the category. Second, treating the “female” category as an ability category treats those who are dissimilar differently and those who are similar similarly. Sex-based athletic categories, broadly conceived, do map onto and encompass a range of ability-related characteristics that are particularly pronounced post puberty. Those who have gone through male puberty have on average taller heights and longer wingspans, larger bones, a larger heart, and greater lung capacity than those who have not.113 As evolutionary biologist Carole Hooven explained with regard to sports, “[m]en don’t have an advantage over women because of one of these factors, but all of them put together.”114
Indeed, if the “female” and “male” athletic categories did not map onto and reflect real and relevant physical differences, it is likely that sex segregation in sports would be far more widely viewed as stigmatic. Imagine, for example, an employer that requires male employees to wear blue shirts and female employees to wear pink shirts and offers awards to the best female and male employee of the week. The distinction seems at best silly and at worst marginalizing and demeaning. The same holds for race and religion categories in sport. Awarding medals to the fastest Black swimmer and the fastest white swimmer would stigmatize Black swimmers in a way that awarding medals to the fastest female swimmers does not. Drawing categories without ability-based differences seems to reflect views of social inferiority, distaste, or at best protectionism—all of which can serve to stigmatize and marginalize the group already viewed as less socially powerful.115
It seems both accurate and fair, then, to conceive of sex categories in sports as ability categories. Nonetheless, treating the “female” category as exclusively an ability category is a mistake, both descriptively and normatively. The “female” athletic category must also be defined and conceived of as a status category.
3. “Female” as a Status Category
Sex-based athletic categories are drawn not only to make contests closer—by narrowing ability differences—but, more critically, to ensure that women, like men, receive the group benefits of sport. The categories reflect social salience as much as athletic prowess and they further anti-subordination as much as close competition. Indeed, at least since the passage of Title IX, women’s sports have become an explicit tool of female empowerment and gender equality.116
If the “female” athletic category were solely an ability category, elite female athletes would have no greater claim to resources or social recognition than would mediocre male athletes who could, very likely, beat them in direct competition. As ability categories, “elite women” and “mediocre men” look similar. Yet there is virtually no serious political or social argument that these two groups should be treated the same. Ability categories, when they exist, are mapped onto sex categories but rarely replace them. Elite female athletes’ claims of entitlement are to parity with elite male athletes, not with the male second string. The “female” category may be an ability category, but it is not only an ability category. It is also a social category drawn with the purpose of providing particular social rewards and recognition to a particular social group—women.
Such a focus on groups and social status is essential. Indeed, the third requirement of fairness is that eligibility rules be drawn with the goal of providing all individuals and groups with access to the same social benefits. The boundaries of the “female” category must, then, be drawn with an eye to their effect on women as a group and with the goal of elevating women’s social status to equality with men’s. In other words, the category must be defined not only with regard to ability markers but also with regard to the group benefits the category provides girls and women. With this definition of and requirement for the “female” category in mind, the next part considers what eligibility rules for female sports maximize the group benefits of sport for all girls, transgender and cisgender.
IV. ALLOCATING GROUP BENEFITS
This part explores several possible framings of the “female” sports category with the goal of optimizing group benefits for both transgender and cisgender girls and women. It begins by considering the effects of exclusion—that is, the separation of transgender and cisgender girls into different athletic categories—and explains why the kind of separate-but-equal framework used by Title IX to equalize group benefits between girls and boys is neither desirable nor feasible when it comes to transgender and cisgender girls. It next considers the effects of inclusion—that is, the direct competition of transgender and cisgender girls in one athletic category. More specifically, it considers the effects of inclusion under three different plausible empirical realities: (1) transgender girls perform no better than cisgender girls on average and are no more likely to win prizes (mean and tail equivalence), (2) transgender girls perform better than cisgender girls on average but are no more likely to win prizes (mean superiority), and (3) transgender girls are significantly more likely than cisgender girls to win prizes and other scarce benefits (tail superiority).
A. Exclusive Categories
As between female and male athletes, separate-but-equal athletic opportunities and resources ensure that women and girls receive group benefits from sports that are comparable to those received by men and boys.117 Female athletes necessarily win special benefits and convey reflective benefits on girls and women generally. Some commentators on girls’ sports have argued for a similar separate-but-equal approach for transgender and cisgender girls.118 When it comes to transgender and cisgender girls, however, separate-but-equal is inherently unequal.
Even under the best-case scenario—one in which transgender girls were able to field robust and diverse athletic teams and competitions—transgender girls would not receive group benefits from sports comparable to those received by cisgender girls. Critically, they would not receive increased self-esteem and social status as girls. Under a separate-but-equal framework, cisgender girls would benefit from having athletic role models and from seeing those with biologically female bodies recognized and celebrated for their strength and agency. Transgender girls too would have athletic role models and would benefit from seeing transgender athletes celebrated and rewarded in ways comparable to those of cisgender athletes. What transgender girls would not receive, however, no matter how well transgender girls were treated under a separate-but-equal model, is affirmation of their status as girls. Separation, and its message that transgender girls are not “real girls,” would undermine any other self-esteem benefits that transgender girls would get from seeing transgender athletes celebrated.
Moreover, this best-case scenario is unrealistic. There are too few transgender athletes to field exclusively transgender teams or leagues. Precise data on the number of transgender girls playing sports at the elementary, high school, or college level do not exist, but a series of estimates suggests that the number of participants is almost certainly extremely low. There are approximately 15 million high school students in the United States, of whom approximately 8 million participate in high school sports.119 According to a Centers for Disease Control study, 1.8% of high school students are transgender.120 Of those, the Human Rights Campaign has found that 14% of transgender boys and 12% of transgender girls play sports.121 These numbers suggest that 0.44% of high school athletes are transgender. Even if these numbers are off tenfold, transgender athletes would not be able to field teams and leagues in the range of sports or with the depth of talent that cisgender athletes enjoy. Separate-but-equal athletic categories for cisgender and transgender girls are impractical as well as undesirable.
B. Inclusive Categories
Transgender girls’ inclusion in girls’ sports—to some degree, and under some conditions—seems essential to ensuring that transgender and cisgender girls receive comparable self- and social-esteem benefits from sport. The next three sections explore the effects that transgender girls’ inclusion in girls’ sports would have on the allocation of group benefits under a range of different empirical assumptions.
Critical to the analysis in each section are two assumptions: first, that transgender girls identify more closely with transgender girls and, as a result, reap more group benefits from transgender girls’ victories than from cisgender girls’ victories, and second, that cisgender girls identify more closely with cisgender girls and, as a result, reap more group benefits from cisgender girls’ victories than from transgender girls’ victories. To the extent that transgender girls identify equally strongly with cisgender girls as with transgender girls and are equally strongly identified socially with each group (and that the same is true for cisgender girls), the group benefits received by both groups will be the same regardless of whether transgender or cisgender girls win particular contests. There would be no reason to care, or even keep track of, whether the special benefits of sports were being awarded disproportionately to transgender or cisgender girls within sex-segregated athletic competitions. Both the theory of role modeling and the political fight over transgender inclusion strongly suggest that this is not the case.
Studies have shown that individuals are more likely to use those who are similar to themselves “as a source of information about themselves” and look for comparisons to those who are “similar to them in terms of their overall performance level on various ability-related tasks.”122 Moreover, it seems that the effects and importance of intra-group role modeling are particularly strong for members of minority and disadvantaged groups.123 Given the arguable physical-ability differences between transgender and cisgender girls and the enduring social status differences between the two groups,124 it seems likely that transgender girls and cisgender girls will identify more strongly with transgender and cisgender athletic winners, respectively.125 Who wins will matter to transgender and cisgender girls alike. This part considers next the effect that several possible competitive realities would have on their respective group benefits.
1. Mean and Tail Equivalence
Imagine first that transgender girl athletes are both no better on average than cisgender girl athletes and no more likely to win. Cisgender girls dominate the winner’s circle, but only because there are more of them competing; their odds of winning are the same as those for transgender girls.
Under such circumstances, nonparticipant transgender girls will experience self-esteem benefits from seeing transgender winners celebrated for their athletic accomplishments. They will also benefit from having transgender girl role models who encourage athletic participation and healthy choices generally. Finally, transgender girls will experience social-esteem benefits from the message of inclusion—namely that transgender girls are girls and should be treated and celebrated as such.
Cisgender girls will experience comparable benefits. They will experience self-esteem benefits from seeing cisgender girls celebrated for their strength and athleticism. They will benefit from having cisgender girl role models whose success encourages their own participation. Finally, cisgender girls’ athletic success, and its celebration, boost cisgender girls’ social esteem by reinforcing their strength and agency and undermining society’s sexualization and objectification of biological women. Individual cisgender girls may still feel aggrieved if they lose in direct competition to transgender girls and believe that the latter exceed the relevant ability metrics. Yet cisgender girls as a group will reap group benefits from seeing cisgender girls’ success within the “female” category as regular rather than exceptional.
Under conditions of equivalence, inclusion and integration of transgender and cisgender girls in sports makes sense. Inclusion provides transgender and cisgender girls with similar group benefits and does not involve significant trade-offs between the two; more specifically, inclusion of transgender girls does not entail group losses for cisgender girls. Inclusion under such conditions is also unlikely to be deeply controversial.126
2. Mean Superiority
Consider next a world in which transgender girls are slightly to moderately better than cisgender girls on average but no better at the extremes. As a result, transgender girls are no more likely to win athletic competitions than are cisgender girls. Despite the fact that transgender girls are somewhat more likely to make a competitive team, the winner’s circle is, again, dominated by cisgender girls simply because there are so many more cisgender girls than transgender girls competing.127
Under such conditions, transgender girls would experience group benefits comparable to those received under conditions of mean and tail equivalence. Indeed, with no more winners, the role-modeling, self-esteem, and social-standing benefits for transgender girls would effectively be the same.
Cisgender girls too would experience group benefits comparable to those received under conditions of mean and tail equivalence. The fact that transgender girls are on average somewhat better than cisgender girls and might hold disproportionate spots on any given team would do little to undermine the self-esteem benefits for cisgender girls. With cisgender girls dominating the winner’s circle, nonparticipant cisgender girls would continue to have ample role models and would experience self-esteem and social-standing benefits from society’s celebration of cisgender girl victories.
There would be no meaningful trade-off or transfer of group benefits between cisgender and transgender girls. Inclusion of transgender and cisgender girls in the same athletic categories would produce substantial and equivalent benefits for both groups.
3. Tail Superiority
Consider, finally, a world in which transgender girls are disproportionately likely to be found at the tail end of the performance distribution for girls and are, therefore, disproportionately represented among athletic winners. Given how many more cisgender than transgender girls there are, it would still be the case that there are more absolute cisgender winners than transgender winners. Nonetheless, under this scenario, a disproportionate share of records, medals, and awards would be won by transgender girls, and in certain discrete categories, transgender girls would dominate.
Certainly, non-participant transgender girls would benefit richly under such conditions—more richly even than they did under conditions of mean equivalence and mean superiority. With more winners, transgender athletes would be more frequently celebrated, transgender girls’ social status would be elevated, and transgender girl role models would be more plentiful.
Cisgender girls, however, would not fare as well as they did under conditions of equivalence or mean superiority. Indeed, the more transgender girls dominate the winner’s circle, the more they deprive cisgender girls of the group benefits of sport. Cisgender girls would see fewer members of their subgroup celebrated, they would have fewer role models, and they would experience fewer reflective and associational self-esteem benefits. Additionally, with biologically female bodies dominated in girls’ sports, the social script that female bodies are physically weak, sexualized objects would become less subject to challenge.
This sense that there is something particularly dangerous about transgender women winning explains the tone and tenor of the controversy over swimmer Lia Thomas.128 Thomas competed for three seasons on Penn’s men’s swim team before transitioning to female and competing in 2021–’22 on Penn’s women’s team. On the men’s team, Thomas was a good but not great swimmer.129 On the women’s team, Thomas was great. She won races and set records.130 At the Zippy Invitational, in December 2021, Thomas “won three events and swam the fastest time in the country in two of those races.”131 In the Ivy League Championship, Thomas won the 500 freestyle with a lead of more than seven seconds over the runner-up.132 At the NCAA Championships in March 2022, Thomas again won the 500-freestyle event.133
Much of the opposition to Thomas’s participation focused on her perceived dominance.134 In a letter opposing her participation, sixteen of her teammates highlighted that Thomas’s “‘rankings have bounced from #462 as a male to #1 as a female.’”135 They cautioned: “’If she were to be eligible to compete against us, she could now break Penn, Ivy, and NCAA Women’s Swimming records.’”136 Former Olympic swimmer Nancy Hogshead-Makar was even more direct in her identification of Thomas’s “domination of the ‘women’s sports’ category” as a problem.137 She argued that transgender women should be allowed to compete in women’s athletics only if they “can show that they’ve mitigated the athletic advantages that come with male puberty.”138 While concerns about Thomas’s dominance were often framed or read as being about unfairness to other competitors,139 they are better understood as also revealing a deeper and broader worry—namely that athletic dominance by transgender girls and women will harm all biological girls and women by deflating or undermining the status, esteem, and role-modeling benefits that biological girls get from biological girls’ and women’s victories.
Indeed, it is under conditions of transgender girls’ superiority at the tail of the female performance curve that transgender and cisgender girls’ interests are most directly in conflict. Under such conditions, group benefits for transgender girls come at a cost for cisgender girls. It is, as a result, on such conditions that policy makers must focus, and only under such conditions that transgender girls’ inclusion in girls’ sports should be limited and made conditional.
CONCLUSION
Sports are social conventions and should, as a result, be structured to optimize individual well-being and to further social goals. This paper has sought to identify the individual and group benefits of sport and to suggest eligibility rules for girls’ sports that optimize the benefits of sports for both transgender and cisgender girls.
However, moving from an identification of the benefits of sports to a prescription for policy is complicated. Different benefits are furthered by different, and incompatible, organizational structures. A society that cared only about the basic benefits of sports, would, for example, organize sports in a very different way than a society that cared only about the special benefits or group benefits of sports. In practice, society cares about all three.
Prescriptions are made even more complicated by the fact that the three benefits exist, to varying degrees, at every level of play. Recreational players care about the (largely intangible) special benefits that come with winning. Elite players reap basic benefits from sport along with the (many tangible) special benefits of play. Young girls may find role models at every level.
Nonetheless, it is the case that particular benefits are more pronounced in particular athletic contexts. For recreational and early childhood leagues, the dominant benefits of play, and often the main reason for playing, are the basic benefits of sports. At the varsity level of high school and college play, the special and group benefits of play are far more significant. Elite athletes work incredibly hard to play at a high level because of the prizes, recognition, and rewards that come from victory. As a result, group benefits are most likely to flow from these high-profile athletic wins.
The context dominance, though not exclusivity, of particular benefits suggests a path for optimizing athletic eligibility rules for transgender and cisgender girls. At the recreational and early childhood levels, the values governing the basic benefits of sports should drive eligibility rules. Such leagues and opportunities should be open to all without regard to ability. Whether such leagues and opportunities are sex segregated or unisex is largely immaterial, and there is no reason to distinguish between transgender and cisgender girls in either case. At the elite level of varsity high school and college sports, the values furthered by the special and group benefits should drive eligibility rules. At least in the short term, sex segregation most directly furthers those goals by ensuring and celebrating female winners and elevating the status of women as a group. Moreover, except in cases in which transgender athletes dominate the winning of special benefits, including transgender girls in girls’ sports optimizes the special and group benefits of sports for both groups.
This paper started from the premise that transgender girls and cisgender girls—like girls and boys—are equally entitled to the individual and group benefits of sports. It then assessed how structures of trans exclusion and inclusion in girls’ sports allocate these benefits in different athletic contexts and under different empirical realities. By identifying how sports benefit individuals and elevate groups, and by acknowledging when group interests conflict with each other, the paper offers a pragmatic and workable roadmap for policy making.
The problem is that in this context, simply recognizing groups and identifying conflicts can prompt existential crisis. If transgender girls are girls, then biology cannot matter and cisgender girls cannot form a socially meaningful distinct class. If transgender girls are girls, then their interests can never be at odds with those of girls. If transgender girls are girls, then those who seek to distinguish them or treat them differently must be motivated by transphobia.140
To succumb to the crisis is a mistake, conceptually and politically. In the context of sports, biological differences matter to who wins and to how they are perceived, and because of such differences the interests of transgender and cisgender women may not always align. To deny this possibility is not only to deny a physical and social reality but to deprive policy makers of the tools and the permission to work toward a resolution for sports that treats transgender and cisgender girls as of equal moral and social worth.
Notes
For a discussion of what the term “transgender” means to activists, see David Valentine, Imagining Transgender: An Ethnography of a Category 33 (2007); see also Nat’l Ctr. for Transgender Equal., Frequently Asked Questions About Transgender People, https://www.transequality.org/sites/default/files/docs/resources/Understanding-Trans-Full-July-2016_0.pdf (last visited Jan. 3, 2023) (explaining that transgender people “are people whose gender identity is different from the gender they were thought to be at birth” and one’s “gender identity” is one’s “internal knowledge of your own gender”). “Cisgender” refers to “[a] person whose gender identity matches the gender they were assigned at birth.” See LGBTQ+ Glossary, It Gets Better Project, https://itgetsbetter.org/blog/lesson/glossary/?gclid=CjwKCAjwr56IBhAvEiwA1fuqGjtrRsVcHkdYpDCS_9I5yazmAGgssmuLpc5gRcDn3_HY7GEZ4aggiBoCshcQAvD_BwE (last visited Apr. 14, 2023).
See Jack Turban, Trans Girls Belong on Girls’ Sports Teams, Sci. Am. (Mar. 16, 2021), https://www.scientificamerican.com/article/trans-girls-belong-on-girls-sports-teams/; see also Gabriel Arkles & Chase Strangio, Four Myths About Trans Athletes, Debunked, ACLU News & Comment. (Apr. 30, 2020), https://www.aclu.org/news/lgbtq-rights/four-myths-about-trans-athletes-debunked; see also Brenda Alvarez, Fair Play for Trans Girls and Women in School Sports, NEA Today (June 21, 2021), https://www.nea.org/advocating-for-change/new-from-nea/fair-play-trans-girls-and-women-school-sports.
This view is most evident in the wave of legislative actions, some successful and some not, seeking to bar transgender girls from participating in girls’ sports. In 2021, Texas enacted a law providing that only individuals designated female at birth may compete on girls’ athletic teams. See H.B. 25, 87th Leg., 3d Spec. Sess. (Tex. 2022). Also in 2021, Florida passed a law providing that sex for athletic participation in public schools will be established by “official birth certificate” fixed at or near birth. See S.B. 1028, Leg., 2021 Sess. (Fla. 2021). In 2022, Republican lawmakers in Indiana overrode a veto by the Republican governor to pass a law prohibiting transgender girls from participating in girls’ sports. The law provides: “A male, based on a student’s biological sex at birth may not participate on an athletic team or sport designated under this section as being a female, women’s or girls’ athletic team or sport.” See H.B. 1041, 122nd Gen. Assemb., 2d Reg. Sess. (Ind. 2022). See generally Katie Barnes, Alabama to Wyoming: State Policies on Transgender Athlete Participation, ESPN (June 7, 2022), https://www.espn.com/espn/story/_/id/32117426/state-policies-transgender-athlete-participation.
I take this term from Jane English. Jane English, Sex Equality in Sports, 7 Phil. & Pub. Affs. 269 (1978).
English refers to these as scarce benefits. Id. at 271 (referring to prizes and publicity as the scarce benefits of sport). I use the term “special” benefits to distinguish them more clearly from basic benefits, which I believe can also be scarce.
According to English, basic benefits encompass “health, the self-respect to be gained by doing one’s best, the cooperation to be learned from working with teammates and the incentive gained from having opponents, the ‘character’ of learning to be a good loser and a good winner, the chance to improve one’s skills and learn to accept criticism—and just plain fun.” English, supra note 4, at 270.
See Matthew Halen Specht, Faster, Higher, Longer: International Development and the Olympic Games, 14 Va. Sports & Ent. L. J. 300, 309 (2015) (“Physical inactivity is a major contributor to cancers, diabetes and heart disease.”); see also World Health Org., Global Recommendations on Physical Activity for Health 10 (2010), https://www.who.int/publications/i/item/9789241599979 (“[P]hysical inactivity is estimated as being the principal cause for approximately 21-25% of breast and colon cancer burden, 27% of diabetes and approximately 30% of ischaemic heart disease burden.”); Ylva Trolle Lagerros et al., Physical Activity in Adolescence and Young Adulthood and Breast Cancer: A Quantitative Review, 13 Eur. J. Cancer Prevention 5, 5–12 (2004) (reviewing twenty-three studies and finding that individuals with the highest physical activity during adolescence and young adulthood were 20% less likely to get breast cancer later in life).
See Women’s Sports Foundation, Her Life Depends on It III: Sport, Physical Activity, and the Health and Well-Being of American Girls and Women 3 (2015), https://www.womenssportsfoundation.org/wp-content/uploads/2017/06/hldoi-iii-report-executive-summary.pdf (noting that moderate levels of exercise are associated with lower levels of depression in girls and women); Christian Rominger et al., Everyday Bodily Movement Is Associated with Creativity Independently from Active Positive Affect: A Bayesian Mediation Analysis Approach, 10 Sci. Reps. 11985 (2020) (finding a positive correlation between bodily movement and creativity).
See Nancy Leong & Emily Bartlett, Sex Segregation in Sports as a Public Health Issue, 40 Cardozo L. Rev. 1813, 1822–23 (2019) (“Participation in sports … [has] vast implications for women’s physical health. Cardiovascular disease, breast cancer, colorectal cancer, sexual health, and maternal health are all intimately connected with a woman’s physical activity levels.”).
Norma V. Kantu, Athletics Experience Vital to Both Sexes, NCAA News, Apr. 26, 1995, at 4, https://ncaanewsarchive.s3.amazonaws.com/1995/19950426.pdf (opining that “values we learn from participation in sports [include] teamwork, standards, leadership, discipline, work ethics, self-sacrifice, pride in accomplishment, [and] strength of character”); Erin E. Buzuvis, Transgender Student-Athletes and Sex-Segregated Sport: Developing Policies of Inclusion for Intercollegiate and Interscholastic Athletics, 21 Seton Hall J. Sports & Ent. L. 1, 46 (2011) (“Sports can foster such social skills as collaboration, trust, empathy and responsibility.”). But see Suzanne Le Menestrel & David Perkins, An Overview of How Sports, Out-of-School Time, and Youth Well-Being Can and Do Intersect, 115 New Directions for Youth Dev. 13, 16 (2007) (noting that “[a]necdotally, the assumption that playing a sport builds character has been part of American culture for many years,” but that the research support for the belief is not clear).
UNESCO, International Charter of Physical Education and Sports 3 (1978), https://www.icsspe.org/sites/default/files/International%20Charter%20of%20Physical%20Education%20and%20Sport.pdf.
See Trevor Born, High Standard for GPA, Star Trib., May 14, 2007 (reporting on a Minnesota State High School League survey finding that student athletes had higher grade-point averages than nonathletes and better school attendance); Dawn Podulka Coe et al., Effect of Physical Education and Activity Levels on Academic Achievement in Children, 38 Med. & Sci. Sports & Exercise 1515 (2006) (finding that elementary school–age students who participated in vigorous physical activity did approximately 10% better in math, science, English, and social studies than students who did less exercise); Stephen Lipsomb, Secondary School Extracurricular Involvement and Achievement: A Fixed Approach, 26 Econ. Educ. Rev. 463 (2007) (finding participation in school sports “is associated with a 2 percent increase in math and science test scores”); Angela Lumpkin & Judy Favor, Comparing the Academic Performance of High School Athletes and Non-Athletes in Kansas in 2008-09, 4 J. Sport Admin. & Supervision 41 (2012) (reporting based on a study of nearly 140,000 Kansas high school students that “athletes earned higher grades, graduated at a higher rate, dropped out of school less frequently, and scored higher on state assessments than did non-athletes”); Overton Study, NCHSAA, https://www.nchsaa.org/overton-study (last visited Apr. 25, 2023) (reporting that a study of North Carolina high school students found that student athletes missed fewer school days than nonathletes).
See President’s Council on Sports, Fitness & Nutrition Sci. Bd., Benefits of Youth Sports (2020), https://health.gov/sites/default/files/2020-09/YSS_Report_OnePager_2020-08-31_web.pdf. Betsey Stevenson has sought in her work to show a causal connection. See Betsey Stevenson, Beyond the Classroom: Using Title IX to Measure the Return to High School Sports, 92 Rev. Econ. & Stat. 284, 294 (2010) (“[A] 10 percentage point increase in girls’ sports participation generates an increase of 0.8 percentage points in the probability of attending at least four years of college. … [A] 10 percentage point increase in girls’ sports participation generates an increase of 1.9 percentage points in the probability of working full time.”).
Luis G. Escobedo et al., Sports Participation, Age at Smoking Initiation, and the Risk of Smoking Among U.S. High School Students, 269 J. Am. Med. Ass’n 1391 (1993); Paul W. Baumert et al., Health Risk Behaviors of Adolescent Participants in Organized Sports, 22 J. Adolescent Health 460 (1998).
Donald F. Sabo et al., High School Athletic Participation, Sexual Behavior and Adolescent Pregnancy: A Regional Study, 25 J. Adolescent Health 207 (1999).
See Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 397 F. Supp. 3d 126 (D. Mass. 2019) (finding insufficient evidence of intentional discrimination against Asian Americans), aff’d 980 F.3d 157 (1st Cir. 2021).
See Saahil Desai, College Sports Are Affirmative Action for Rich White Students, Atlantic (Oct. 23, 2018), https://www.theatlantic.com/education/archive/2018/10/college-sports-benefits-white-students/573688/.
James Shulman & William Bowen, The Game of Life: College Sports and Educational Values 72 (2002); see also William G. Bowen & Sarah A. Levin, Reclaiming the Game: College Sports and Educational Values (2003) (finding that applicants to the Ivy League in the late 1990s with a combined SAT score between 1300 and 1400 had only a 15% chance of being admitted but that recruited male athletes with scores in that range had a 60% chance of being admitted and recruited female athletes with scores in that range had a 70% chance of admission).
See Scholarships, NCAA, https://www.ncaa.org/student-athletes/future/scholarships (last visited Nov. 18, 2022).
See Deborah Ziff Soriano & Emma Kerr, 5 Myths About Athletic Scholarships, U.S. News (Mar. 24, 2021), https://www.usnews.com/education/best-colleges/paying-for-college/articles/myths-about-athletic-scholarships.
Kelman identified two additional group benefits that may flow from the allocation of resources to athletic winners. The first is a benefit resulting from interdependent utility functions between women as a group and female athletic winners. Because I agree with Kelman’s skepticism that what women viewers share and celebrate is female winners’ happiness, as opposed to the social meaning of their victories, I do not focus on this benefit. Kelman also identified a benefit in the preservation of a distinct subcultural identity. Because I am skeptical that either transgender or cisgender girls have a distinct subcultural identity that is tied to their participation in competitive athletics, I also do not focus on this benefit. See Mark Kelman, (Why) Does Gender Equity in College Athletics Entail Gender Equality?, 7 S. Cal. Rev. L. & Women’s Stud. 63, 106–21 (1997).
Id. at 107. “[M]embers of historically subordinated groups,” Kelman explained, “are linked in the sense that many may gain self-respect from the presence of highly visible successful people in their groups, since self-esteem grows in part out of how one’s group is evaluated, as well as how one is treated personally.” See also English, supra note 4, at 273 (“Members of disadvantaged groups identify strongly with each other’s successes and failures. If women do not attain roughly equal fame and fortune in sports, it leads both men and women to think of women as naturally inferior.”).
See Hart Blanton et al., The Effects of In-Group Versus Out-Group Social Comparison on Self-Esteem in the Context of a Negative Stereotype, 36 J. Experimental Soc. Psych. 519 (2000) (finding female African American students’ self-esteem was increased by comparisons with high-performing in-group members and decreased by comparisons with high-performing out-group members); Penelope Lockwood, “Someone Like Me Can Be Successful”: Do College Students Need Same-Gender Role Models?, 30 Psych. Women Q. 36 (2006) (finding that women reported higher increases in ratings of self-competence when exposed to successful women than when exposed to successful men).
See English, supra note 4, at 273 (“When there are virtually no female athletic stars, or when women receive much less prize money than men do, this is damaging to the self-respect of all women.”).
See Lockwood, supra note 23 (finding that women’s self-competence ratings were affected by exposure to a successful woman whereas men’s competence ratings were not affected by exposure to successful women or men arguably because men’s greater likelihood of success made such exposure less relevant); see also Kelman, supra note 21, at 107 (arguing that “[m]embers of historically subordinated groups, like women, require [group mediated self-esteem], in ways that members of socially dominant groups do not, because the self-respect of individuals in these groups is below the social baseline enjoyed by dominant group members”).
The term “role models” is widely used and generally refers to individuals who serve as examples of a particular kind of behavior. See, e.g., Lockwood, supra note 23 (describing role models as “individuals who provide an example of the kind of success that one may achieve, and often also provide a template of the behaviors that are needed to achieve such success”); David Gauntlett, Media, Gender, and Identity 211 (2002) (defining a role model as “someone to look up to and base your character, values and aspirations on”).
Ample research shows that under the right circumstances, role models can have many positive effects for role aspirants. See, e.g., Nilanjana Dasgupta, Ingroup Experts and Peers as Social Vaccines Who Inoculate the Self-Concept: The Stereotype Inoculation Model, 224 Psych. Inquiry 231 (2011) (showing that role models can reduce the effects of stereotype threat); Anat BarNir et al., Mediation and Moderated Mediation in the Relationship Among Role Models, Self-Efficacy, Entrepreneurial Career Intention, and Gender, 41 J. Applied Soc. Psych. 270 (2011) (role models can change aspirant’s goals); Lockwood, supra note 23; Penelope Lockwood et al., Motivation by Positive or Negative Role Models: Regulatory Focus Determines Who Will Best Inspire Us, 83 J. Personality & Soc. Psych. 854–64 (2002) (role models can increase motivation); Michael E. Brown & Linda K. Treviño, Do Role Models Matter? An Investigation of Role Modeling as an Antecedent of Perceived Ethical Leadership, 122 J. Bus. Ethics 587 (2013) (role models can prompt pro-social and moral behavior); Edith Chen et al., Role Models and the Psychological Characteristics That Buffer Low-Socioeconomic-Status Youth from Cardiovascular Risk, 84 Child Dev. 1241 (2013) (role models can lead to improved health); Gary Barker & Irene Loewenstein, Where the Boys Are: Attitudes Related to Masculinity, Fatherhood, and Violence Toward Women Among Low-Income Adolescent and Young Adult Males in Rio de Janeiro, Brazil, 29 Youth & Soc’y 166 (1997) (role models can lead to a change in aspirant values).
Kelman, supra note 21, at 108; see also Lockwood, supra note 23 (finding that female study participants identified more strongly with successful women than with men); J.G. Stout et al., STEMing the Tide: Using Ingroup Experts to Inoculate Women’s Self-Concept in Science, Technology, Engineering, and Mathematics (STEM), 100 J. Personality & Soc. Psych. 255 (2011) (finding that female students majoring in STEM who interacted with a female STEM expert attempted more math problems, showed a more positive attitude toward math, and associated themselves more strongly with math than did female students who interacted with a male experimenter). But see B. Carrington et al., Role Models, School Improvement and the “Gender Gap”—Do Men Bring Out the Best in Boys and Women the Best in Girls?, 34 Brit. Educ. Res. J. 315 (2008) (finding that teachers’ gender had no impact on the math performance of boys and girls or their attitude toward math).
See Kelman, supra note 21, at 108–09.
Id. at 108 (explaining that what is necessary for role modeling is “absolute resource availability”).
See id. at 119–20 (“By not affirming the importance of women’s athleticism, women’s bodies are ‘affirmed’ only as sexual (objects of heterosexual male gaze) and passive, rather than as self-directed, multi-faceted and active.”).
Patrick Croskery explained:
A non-rival good is one where uses do not conflict. For example, we might distinguish between a text, that is, a pattern of words, and a book, that is, a particular physical object in which a text is instantiated. The text is a non-rival good—an unlimited number of people can be reading the same text without interfering with one another. The book, on the other hand, is a rival good—it is hard to imagine more than five or six people reading the same book, and certainly that many people would be interfering with one another as they tried to read it.
English, supra note 4, at 270.
See, e.g., Amartya Sen, Equality of What? The Tanner Lectures on Human Values 195 (Sterling M. McMurrin ed., 1980), reprinted in Choice, Welfare and Measurement 353 (1982); Amartya Sen, Inequality Reexamined (1992); Amartya Sen, Capability and Well-Being, in The Quality of Life 30–31 (Martha Nussbaum & Amartya Sen eds., 1993) (for a definition of capabilities); Martha C. Nussbaum, Human Functioning and Social Justice: In Defense of Aristotelian Essentialism, 20 Pol. Theory 202 (1992); Martha C. Nussbaum, Nature, Function, and Capability: Aristotle on Political Distribution, 6 Oxford Stud. Ancient Phil. 145 (Supp. 1988).
Nussbaum has offered the following as a working list of the most central human capabilities: (1) life, (2) bodily health, (3) bodily integrity, (4) senses, imagination, and thought, (5) emotions, (6) practical reason, (7) friendship and respect, (8) being able to live with concern for other species, (9) play, and (10) control over one’s environment. Martha C. Nussbaum, Capabilities and Human Rights, 66 Fordham L. Rev. 173, 287–88 (1997); see also Jean Dreze & Amartya Sen, India: Economic Development and Social Opportunity 13–16, 109–39 (1995).
Norman Daniels, Just Health Care 26–28 (1985).
Id. at 32.
The IDEA provides states with financial assistance to educate students with disabilities. Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400–1412 (2000).
20 U.S.C. § 1412(a)(1) & (5).
Kimberly A. Yuracko, One for You and One for Me, 97 Nw. L. Rev. 731, 763–64 (2003).
See Risk Pooling: How Health Insurance in the Individual Market Works, Am. Acad. of Actuaries (July 2017), https://www.actuary.org/content/risk-pooling-how-health-insurance-individual-market-works-0; see also Health and Economic Costs of Chronic Diseases, Ctrs. for Disease Control & Prevention (CDC), https://www.cdc.gov/chronicdisease/about/costs/index.htm (Sept. 8, 2022, 12:00 AM).
See Erin E. Buzuvis, Transgender Student-Athletes and Sex-Segregated Sport: Developing Policies of Inclusion for Intercollegiate and Interscholastic Athletics, 21 Seton Hall J. Sports & Ent. L. 1, 48 (2011) (quoting Arnold Grossman & Anthony R. D’Augelli, Transgender Youth: Invisible and Vulnerable, 51 J. Homosexuality 111, 112–13 (2006)).
See, e.g., Scott Skinner-Thompson & Ilona M. Turner, Title IX’s Protections for Transgender Student Athletes, 28 Wis. J. L., Gender & Soc’y 271, 298 (2013) (arguing that the “social mental and physical benefits of interscholastic sports participation are even more necessary for vulnerable groups such as transgender students”).
Einer Elhauge, Allocating Health Care Morally, 82 Cal. L. Rev. 1449, 1465–66 (1994).
Madison Powers & Ruth Faden, Social Justice: The Moral Foundations of Public Health and Health Policy (2006); see also Social Justice and Health, Am. Pub. Health Ass’n, https://www.apha.org/what-is-public-health/generation-public-health/our-work/social-justice (Nov. 27, 2022).
John Rawls, The Law of Peoples 49–50 (1993). Rawls identified five conditions necessary for political stability: (1) “[a] certain fair equality of opportunity,” (2) “[a] decent distribution of income and wealth,” (3) “[s]ociety as employer of last resort,” (4) “[b]asic health care assured for all citizens,” and (5) “[p]ublic financing of elections and ways of assuring the availability of public information on matters of policy.” Id.; see also Ani B. Satz, The Limits of Health Care Reform, 59 Ala. L. Rev. 1451, 1465 n.72 (2008) (arguing that “[t]he existence of universal health care schemes premised on basic minimums in most democratic western nations, including Canada, Australia, and Germany, is empirical support” for the claim that equal basic health care is necessary for democracy).
Erin C. Fuse Brown, Developing a Durable Right to Health Care, 14 Minn. J. L., Sci., & Tech. 439, at 442 (2013).
111 Cong. Rec. H12857 (daily ed., Nov. 7, 2009) (Statement of Rep. John Lewis encouraging passage of the Quality Affordable Health Care for All Americans Act).
Debra Satz, Equality, Adequacy, and Educational Policy, 3 Educ. Fin. & Pol’y 424 (2008).
Amy Gutmann, Civic Education and Social Diversity, 105 Ethics 557, 561 (1995).
Id. at 577.
Kimberly A. Yuracko, Education Off the Grid: Constitutional Constraints on Homeschooling, 96 Cal. L. Rev. 123, 136–37 (2008); see also Quentin A. Palfrey, The State Judiciary’s Role in Fulfilling Brown’s Promise, 8 Mich. J. Race & L. 1, 6 (2002) (“Every state constitution contains an education clause requiring the state legislature to establish a system of free public schools.”); James E. Ryan & Thomas Saunders, Foreword to Symposium on School Finance Litigation: Emerging Trends or New Dead Ends?, 22 Yale L. & Pol’y Rev. 403, 466 (2004) (“[E]very state constitution contains an education clause mandating the provision of a free, public education.”). Some scholars argue that the federal constitution’s Due Process Clause too creates a right to a basic minimum level of public education. Yuracko, supra, at 138 n.69.
English, supra note 4, at 276 (“Only where style of play is very different would groupings by weight, age, or sex be recommended.”).
English, supra note 4, at 275.
Irena Martínková, Unisex Sports: Challenging the Binary, 47 J. Phil. Sport 248, 251 (2020); see also Torbjörn Tännsjö, Against Sexual Discrimination in Sports, in Values in Sport: Elitism, Nationalism, Gender Equality and the Scientific Manufacture of Winners 102–03 (Torbjörn Tännsjö & Claudio Tamburrini eds., 2000) (arguing that men’s and women’s categories in sports should be eliminated and new sports should be created in which women and men can compete against each other as equals).
See, e.g., Billy Baker, Pickleball Is Growing at an Almost Unprecedented Rate in the History of American Sports, Bost. Globe (Sept. 24, 2021), https://www.bostonglobe.com/2021/09/24/metro/boomers-have-created-pickleball-phenomenon.
See Most Popular Sports in the World (1930–2020), Stat. & Data, https://statisticsanddata.org/most-popular-sports-in-the-world/ (last visited Feb. 11, 2022).
A move to unisex athletic teams would probably be easiest and best received for young children of elementary school age, in whom physical differences between the sexes are least pronounced. Espen Tonnessen et al., Performance Development in Adolescent Track and Field Athletes According to Age, Sex and Sport Discipline, 10 PLoS One 1 (2015) (noting that the performance sex difference evolves from <5% to 10%–18% in all the events from ages 11 to 18).
English argued that athletic resources should be divided equally between men’s and women’s teams following a separate-but-equal model. English, supra note 4.
Id. at 277. Writing in the 1970s, English focused on biological women. Equal resources for sex-segregated teams meant equal basic benefits for biological women and men. English did not focus explicitly on transgender girls and the question of how to ensure that they too receive equal basic benefits.
See Strangio & Arkles, supra note 2 (“Excluding trans people from any space or activity is harmful, particularly for trans youth. … ‘When a school or athletic organization denies transgender students the ability to participate equally in athletics because they are transgender, that condones, reinforces, and affirms the transgender students’ social status as outsiders or misfits who deserve the hostility they experience from peers.’” Id. (quoting Dr. Deanna Adkins).
See Shoshana K. Goldberg, The Importance of Sports Participation for Transgender Youth, Am. Progress (Feb. 8, 2021), https://www.americanprogress.org/article/fair-play/ (arguing that policies that “ban transgender students from participating and competing on sports teams in accordance with their gender identity, or make it difficult for them to do so—can do substantial harm to the mental health, well-being, and lives of transgender youth, athletes and nonathletes alike”).
If transgender girls’ athletic ability is more comparable to cisgender boys’ than cisgender girls’, it is possible that some cisgender girls might be discouraged from participating for the same reasons they might be discouraged from participating in coed sports leagues—the game is different; the risk of injury is higher. However, given the low numbers of transgender individuals, it seems unlikely that the inclusion of transgender girls on recreational teams will either change the nature of play or increase risk of injury across girls’ sports in any significant way.
There would still be those who as a matter of principle—whether moral or religious—believe that sex can never be changed and transgender girls must always be treated as boys. The political power and size of this contingent would certainly vary geographically. However, it seems clear from the controversy over transgender swimmer Lia Thomas’s participation in women’s swimming that much of the opposition to inclusion stems not from principle but from concern about access to the special benefits and rewards of sport. See, e.g., Matt Bonesteel, Sixteen Penn Swimmers Say Transgender Teammate Lia Thomas Should Not Be Allowed to Compete, Wash. Post (Feb. 2, 2022), https://www.washingtonpost.com/sports/2022/02/03/lia-thomas-penn-swimming-teammates/ (quoting Penn swimmers who explain that they “fully support Lia Thomas in her decision to affirm her gender identity and to transition from a man to a woman” but arguing that “[i]f she were to be eligible to compete against us, she could now break Penn, Ivy, and NCAA Women’s Swimming records”); John Lohn, Allowing Lia Thomas to Compete at NCAA Championships Would Establish Unfair Setting, Swimming World (Dec. 9, 2021), https://www.swimmingworldmagazine.com/news/allowing-lia-thomas-to-compete-at-ncaa-championships-would-establish-unfair-setting/ (noting that “Thomas is stalking Ledecky’s 500 freestyle record, a chase that reveals the unfairness in her racing against cisgender women”).
Those arguing for exclusion contend that direct competition between transgender and cisgender girls is unfair. Those arguing for inclusion contend that direct competition is fair. But for both, the spoils must go to the (fair) victors. Compare Chelsea Mitchell, I Was the Fastest Girl in Connecticut. But Transgender Athletes Made It an Unfair Fight, USA Today (May 22, 2021), https://www.usatoday.com/story/opinion/2021/05/22/transgender-athletes-girls-women-sports-track-connecticut-column/5149532001/?gnt-cfr=1, Eric Spitznagel, Trans Women Athletes Have Unfair Advantage over Those Born Female: Testosterone, N.Y. Post (July 10, 2021), https://nypost.com/2021/07/10/trans-women-athletes-have-unfair-advantage-over-those-born-female/ (drawing on recently published book and outspoken athletes to highlight that trans women have an unfair advantage in sports based on their testosterone), Martina Navratilova, The Rules on Trans Athletes Reward Cheats and Punish the Innocent, Sunday Times (Feb. 17, 2019), https://www.thetimes.co.uk/article/the-rules-on-trans-athletes-reward-cheats-and-punish-the-innocent-klsrq6h3x, Dan Avery, Trans Women Retain Athletic Edge After a Year of Hormone Therapy, Study Finds, NBC News (Jan. 5, 2021), https://www.nbcnews.com/feature/nbc-out/trans-women-retain-athletic-edge-after-year-hormone-therapy-study-n1252764, and John Stossel, Transgender Athletes Have an Unfair Advantage, Times News (Aug. 5, 2021), https://www.timesnews.net/opinion/blogs/transgender-athletes-have-an-unfair-advantage/article_943db146-f521-11eb-9818-43c27684696a.html, with Turban, supra, note 2 (arguing there is no scientific case for excluding transgender girls from girls’ sports teams), Tinbete Ermyas & Kira Wakeam, Waves of Bills to Block Trans Athletes Has No Basis in Science, Researcher Says, NPR Sports (March 18, 2021), https://www.npr.org/2021/03/18/978716732/wave-of-new-bills-say-trans-athletes-have-an-unfair-edge-what-does-the-science-s, Ashley Schwartz-Lavares, Trans Women Targeted in Sports Bans, but Are They Really at an Advantage?, ABC News (Apr. 7, 2021), https://abcnews.go.com/US/trans-women-targeted-sports-bans-advantage/story?id=76909090, James Factora, Trans Inclusion in School Sports Doesn’t Hurt Cisgender Girls, New Report Finds, them (Feb. 8, 2021), https://www.them.us/story/trans-inclusion-school-sports-study, and Risa Isard, Discriminatory Sports Laws Hurt Trans Girls—and Cis Girls, Too, Glob. Sports Matters (May 31, 2021), https://globalsportmatters.com/opinion/2021/03/31/discriminatory-sports-laws-hurt-trans-girls-and-cis-girls-too/ (arguing there is no evidence that trans girls are better at sports than cis girls).
While a few sports are currently unisex, the vast majority of sporting competitions are currently not. Indeed, the only Olympic sport that is unisex is equestrian. Martínková, supra note 54, at 256. There are “mixed sports.” They include mixed doubles in tennis, 4x400m relays in track and field, and four-person teams in Alpine skiing parallel slalom. Id. However, mixed sports are not the same as unisex sports. In unisex sports, the sex of the participants is irrelevant to their participation, while in mixed sports, the sex of the participants is an element of their eligibility to participate on the mixed team.
See Olympian Nancy Hogshead Fires Back at Trans Athlete Lia Thomas … ‘It Isn’t Fair.’ TMZ Sports (May 31, 2022), https://www.tmz.com/2022/05/31/nancy-hogshead-lia-thomas-trans-athletes-evidence/ (“After somebody has been through male puberty, you cannot roll that back,” and in the absence of sex segregation in sports, women would “have to be gracious losers to somebody that has a biological advantage that you can’t train for, you can’t eat better, you can’t find better coaching.” (quoting Nancy Hogshead Makar)); Doriane Lambelet Coleman, Sex in Sport, 80 L. & Contemp. Probs. 63, 87 (2017); Steve Magness, There’s Good Reason for Sports to Be Separated by Sex, Atlantic (Sept. 29, 2022), https://www.theatlantic.com/culture/archive/2022/09/why-elite-sports-should-remain-separated-by-sex/671594/ (describing the gap between males’ and females’ performances in track and swimming).
See Jessica A. Clark, They, Them, and Theirs, 132 Harv. L. Rev. 894, 973 (2019) (“At elite levels, gender neutrality would reduce the number of women who qualify for national teams and win medals. If only a few women succeed, they will be written off as ‘outliers’ and their small numbers will be used as evidence of women’s natural athletic inferiority rather than ‘an indictment of society’s suppression of female athleticism.’”). As discussed previously, while some scholars argue in favor of creating new sports or modifying existing ones to achieve a more proportional distribution of wins for male and female athletes, I am skeptical that existing preferences can be easily changed and wary of the state or institutional suppression of existing sports that would probably be required to do so. In any event, creating new sports and shifting participant preferences would take time. In the meantime, girls and women would receive significantly fewer prizes and awards than they do under a system of sex-segregated sports.
See 34 C.F.R. § 106.41(b) (2020) (stating that a recipient of federal funds “may operate or sponsor separate teams for members of each sex”).
See Zoe Seaman-Grant, Title IX and the Alleged Victimization of Men: Applying Twombly to Federal Title IX, 28 Mich. J. Gender & L. 281, 296 (2022); Guardians Ass’n v. Civ. Serv. Comm’n N.Y.C., 463 U.S. 582, 602 (1963) (holding that Title VI supports a private right of action for declarative and injunctive relief for unintentional violations).
See Haffner v. Temple Univ., 678 F. Supp. 517, 539 (E.D. Pa. 1987) (holding in a Title IX action that “plaintiffs need not prove discriminatory intent to succeed on their claim”); Horner v. Ky. High Sch. Athletic Ass’n, 206 F.3d 685, 692 (6th Cir. 2000) (recognizing a disparate-impact claim under Title IX but holding that discriminatory intent “is a prerequisite for money damages under Title IX when a facially neutral policy is challenged under a disparate impact theory”); but see Doe v. Univ. of Cincinnati, 173 F. Supp. 3d 586, 608 (S.D. Ohio 2016) (holding that “since recovery under Title IX under a disparate impact theory is not permitted, Plaintiffs’ [sic] cannot state a claim by alleging that UC’s otherwise gender-neutral disciplinary procedures disproportionately affect men”).
See Leong & Bartlett, supra note 9 (arguing that under Equal Protection Clause analysis, the health consequences of segregation should be taken into account to determine when sports should or should not be segregated by sex); Adrienne Milner & Jomills Braddock, Sex Segregation in Sports: Why Separate Is Not Equal (2016) (arguing in favor of dismantling Title IX’s sex-segregation structure); Maggie Mertens, Separating Sports by Sex Doesn’t Make Sense, Atlantic (Sept. 17, 2022), https://www.theatlantic.com/culture/archive/2022/09/sports-gender-sex-segregation-coed/671460/ (“Old notions of sex as a marker of physical capability are changing, and more research is making clear that sex differences aren’t really clear at all.”); Flick Haigh, Don’t Segregate Female Athletes. Celebrate Them, N.Y. Times (Dec. 6, 2019), https://www.nytimes.com/2019/12/06/opinion/women-sports-segregation.html (arguing that lack of encouragement rather than disparity in physical abilities drives differences in sports performance between the sexes).
Ability categories, by controlling to some degree for natural advantages, crystallize the distinction between ability and effort and define merit, to a greater degree than in open competition, in terms of the latter.
See Cruz v. Pa. Interscholastic Athletic Ass’n, Inc., 157 F. Supp. 2d 485 (2001) (explaining that the reason for age-based eligibility rules was to ensure that teams were evenly matched and to protect younger athletes from injury).
See Henry T. Greely, Disabilities, Enhancements, and the Meanings of Sports, 15 Stan. L. & Pol’y Rev. 99, 124 (2004) (opining that “closer contests are usually more entertaining”).
Mertens, supra note 71; see also Sarah Jane Teetzel, A Philosophical Analysis of Olympic Eligibility, Values, and Auxiliary Rules 215 (2009) (Ph.D. dissertation, University of Western Ontario) (noting that “[w]hile dividing sports into men’s and women’s events is socially convenient, doing so upholds outdated stereotypes about women being less powerful and more fragile athletes” and arguing that “[a]lternatives to the current categories that divide most competitions into separate men’s and women’s events could include divisions not based on sex but on competitors’ weight and height, which is already done in boxing, wrestling, and to some extent rowing”).
See Rosalyn Kerr, Why It Might Be Time to Eradicate Sex Segregation in Sports, Conversation (Jan. 14, 2018), https://theconversation.com/why-it-might-be-time-to-eradicate-sex-segregation-in-sports-89305 (describing a range of ability-based categories in sports and arguing that sex-based categories should be replaced with discrete ability categories).
Malcom Gladwell, Outliers: The Story of Success 3–4 (2011).
It is more possible with ability categories than it is with open competition to draw eligibility rules so as to reduce the disparity between men’s and women’s victories. For example, ability-based eligibility lines for basketball that separate those athletes who are shorter than 5 foot 5 inches from those who are taller than 5 foot 5 inches will more evenly distribute special benefits to women and men than would eligibility lines that divide between those athletes who are shorter than and taller than 6 feet. Nonetheless, it is likely that most common ability categories—e.g., those divided by height or weight—will be dominated by men. See Sandro Bartolomei et al., A Comparison Between Male and Female Athletics in Relative Strength and Power Performances, 6 J. Functional Morphology & Kinesiology 17 (2021); Lincoln E. Ford et al., Gender- and Height-Related Limits of Muscle Strength in World Weightlifting Champions, 89 J. Applied Physiology 1061 (2000); Allison Jack, The Comparison of Vertical Jump Height Between Gender and Body Fat Percentage (2013) (Univ. Tex. Arlington Librs.), https://rc.library.uta.edu/uta-ir/handle/10106/24194.
Thomas W. Pogge, Moral Universalism and Global Economic Justice, 1 Pol., Phil. & Econ. 29 (2002).
Id. at 30.
Id.
Id.
William J. Morgan, Fair Is Fair, Or Is It?: A Moral Consideration of the Doping Wars in American Sport, 9 Sport in Soc’y 177, 180 (2006).
Sarah Jane Teetzel, A Philosophical Analysis of Olympic Eligibility Values and Auxiliary Rules 180–81 (2009) (Ph.D. dissertation, University of Western Ontario).
Sigmund Loland, Fair Play in Sport: A Moral Norm System 29 (2002).
See supra note 2; see also Nicholas Chadi, Gender Identity, Medscape (Nov. 14, 2022), https://emedicine.medscape.com/article/917990-overview (“Gender identity, as it develops, is self-identified, as a result of a combination of inherent and extrinsic factors.”); Myths About Transgender Girls in Sports, ACLU Iowa (last visited Nov. 29, 2022), https://www.aclu-ia.org/en/myths-about-transgender-girls-sports (“The bottom line is that trans girls are girls and should participate in girls’ sports. They are not boys and they are not an ‘other’ that should be excluded.”).
Dear Colleague Letter on Transgender Students, U.S. Dep’t of Educ. & U.S. Dep’t of Just. 2 (May 13, 2016), https://www.ed.gov/ocr/letters/colleague-201605-title-ix-transgender.pdf.
Id.
Id. at 3.
Id. at 2. The Trump Administration rescinded the Dear Colleague Letter. See Dear Colleague Letter, U.S. Dep’t of Educ. & U.S. Dep’t of Just. (Feb. 22, 2017), https://www.cmu.edu/title-ix/2-22-17-guidance_letter1.pdf.
President Biden, while on the campaign trail, promised to reinstate the Obama-era guidance. See The Biden Plan to Advance LGBTQ+ Equality in America and Around the World, Democratic Nat’l Comm., https://perma.cc/8TDP-C4UD (last visited Nov. 29, 2022). He did not do so, but he did, upon taking office, issue a broad executive order to protect transgender children that provided: “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.” See Exec. Order No. 13988, 86 Fed. Reg. 7023–25 (Jan. 20, 2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/. This rather vague executive order instructed the head of each agency to promulgate any new actions necessary to further the policy of the order. Id. In response to the order, the Department of Education issued a Notice of Interpretation explaining that Title IX’s prohibition of discrimination on the basis of sex includes discrimination based on gender identity. See U.S. Department of Education Confirms Title IX Protects Students from Discrimination Based on Sexual Orientation and Gender Identity, 86 Fed. Reg. 32637 (proposed June 16, 2021), https://www.govinfo.gov./app/details/FR-2021-06-22/2021-13058. In addition, on June 23, 2022, the Department of Education released for public comment proposed changes to Title IX regulations that would strengthen protections for transgender students. The proposed regulations “would make clear that preventing any person from participating in an education program or activity consistent with their gender identity would subject them to more than de minimis harm on the basis of sex and therefore be prohibited, unless otherwise permitted by Title IX or the regulations.” See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 87 Fed. Reg. 41390, 41534 (proposed Jul. 12, 2022) (to be codified at 34 C.F.R. pt. 106), https://www.govinfo.gov/content/pkg/FR-2022-07-12/pdf/2022-13734.pdf. On April 6, 2023, the Department of Education issued a Notice of Proposed Rulemaking on Title IX dealing particularly with athletes. The proposed rule provides that if a school adopts criteria that would limit a student’s eligibility to participate on the athletic team consistent with their gender identity, the criteria must be substantially related to an important educational objective and must minimize harm to the affected student. See FACT SHEET: U.S. Department of Education’s Proposed Change to Its Title IX Regulations on Students’ Eligibility for Athletic Teams, U.S. Dept. of Educ. (Apr. 6, 2023), https://www.ed.gov/news/press-releases/fact-sheet-us-department-educations-proposed-change-its-title-ix-regulations-students-eligibility-athletic-teams.
See Lindsay Pierper, Sex Testing: Gender Policing in Women’s Sports 1 (2016).
Id. at 2; see also Cheryl Cooky & Shari L. Dworkin, Policing the Boundaries of Sex: A Critical Examination of Gender Verification and the Caster Semenya Controversy, 50 J. Sex Rsch. 103 (2013); Haley K. Olsen-Acre, The Use of Drug Testing to Police Sex and Gender in the Olympic Games, 13 Mich. J. Gender & L. 207 (2007).
Ruth Padawer, The Humiliating Practice of Sex-Testing Female Athletes, N.Y. Times (June 28, 2016), https://www.nytimes.com/2016/07/03/magazine/the-humiliating-practice-of-sex-testing-female-athletes.html.
NCAA Inclusion of Transgender Student-Athletes, NCAA Off. of Inclusion 13 (Aug. 2011), https://ncaaorg.s3.amazonaws.com/inclusion/lgbtq/INC_TransgenderHandbook.pdf.
Id.
See Board of Governors Updates Transgender Participation Policy, NCAA (Jan. 19, 2022), https://www.ncaa.org/news/2022/1/19/media-center-board-of-governors-updates-transgender-participation-policy.aspx.
Id.
See USA Swimming Releases Athlete Inclusion, Competitive Equity and Eligibility Policy, USA Swimming (Feb. 2, 2022), https://www.usaswimming.org/news/2022/02/01/usa-swimming-releases-athlete-inclusion-competitive-equity-and-eligibility-policy.
Id.
Id.
USA Swimming, 19.0 Athlete Inclusion, Competitive Equity, and Eligibility Policy (adopted/last revised Mar. 10, 2023), https://www.usaswimming.org/docs/default-source/governance/governance-lsc-website/rules_policies/usa-swimming-policy-19.pdf.
Id.
See Get the Facts: Trans Equity in Sports, Gender/Just., https://www.genderjustice.us/get-the-facts-trans-equity-in-sports/ (Jan. 12, 2021) (focusing on the wingspan of Michael Phelps, the height-to-strength ratio of Simone Biles, and the height of Manute Bol and explaining that “[t]here’s no scientific evidence that the average trans athlete is any bigger, stronger, or faster than the average cis athlete”).
Dirk Smith, Do Transgender Athletes Have a Performance Advantage? Let’s Look at the Results, Compete Network (June 7, 2021), https://www.competenetwork.com/do-transgender-athletes-have-a-performance-advantage-lets-look-at-the-results.
Frank Mir & Terry Schilling, Not a Fair Fight: Our Athlete Daughters Shouldn’t Have to Compete with Transgender Women, USA Today, Feb. 26, 2021, 2:06 PM, https://www.usatoday.com/story/opinion/2021/02/25/transgender-women-unfair-playing-field-for-girls-column/6813749002/.
Sean Ingle, Sport’s Trans Issue Is Here to Stay. But at Last, the Debate Is Starting to Change, Guardian (Dec. 13, 2021), https://www.theguardian.com/sport/blog/2021/dec/13/swimming-trans-debate-starting-to-change.
Nancy Hogshead-Makar, It Was Not Fair When I Raced Against Doped-Up East Germans and It Is Not Fair for Women to Compete Against Transgender Swimmer Lia Thomas; Here’s Why, Daily Mail (Dec. 24, 2021), https://www.dailymail.co.uk/news/article-10341327/It-not-fair-women-race-against-transgender-Lia-Thomas-Olympic-champ-Nancy-Hogshead-Makar.html.
Int’l Olympic Comm., IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism (2015), https://stillmed.olympic.org/media/Document%20Library/OlympicOrg/IOC/Who-We-Are/Commissions/Medical-and-Scientific-Commission/EN-IOC-Consensus-Meeting-on-Sex-Reassignment-and-Hyperandrogenism.pdf#_ga=2.65175790.1969810920.1583142070-565578026.1510926856.
Id.
Id.
See, e.g., Frankie De La Cretaz, The IOC Has a New Trans-Inclusion Framework, But Is the Damage Already Done?, Sports Illustrated (Mar. 23, 2002), https://www.si.com/olympics/2022/03/23/transgender-athletes-testosterone-policies-ioc-framework (describing female eligibility rules for the International Olympic Committee and for several different athletic governing bodies); see also USA Swimming Releases Athlete Inclusion, Competitive Equity and Eligibility Policy, supra note 99; Int’l Olympic Comm., IOC Framework on Fairness, Inclusion and Non Discrimination on the Basis of Gender Identity and Sex Variations (2021), https://stillmed.olympics.com/media/Documents/Beyond-the-Games/Human-Rights/IOC-Framework-Fairness-Inclusion-Non-discrimination-2021.pdf; Katie Barnes, NCAA Updates Policy on Transgender Participation, to Let Each Sport Set Eligibility Requirements, ESPN (Jan. 19, 2022), https://www.espn.com/college-sports/story/_/id/33105305/ncaa-updates-policy-transgender-participation-let-sport-set-requirements; Nat’l Women’s Soccer League, NWSL Policy on Transgender Athletes (2021), https://prod-nwsl-cdn.s3.amazonaws.com/wp/uploads/2021/03/2021-NWSL-Policy-on-Transgender-Athletes.pdf; Athletes Unlimited, Athletes Unlimited Policy on Participation of Transgender and Non-Binary Athletes: Women’s Sports (2021), https://auprosports.com/wp-content/uploads/2021/03/Athletes-Unlimited-Policy-on-Participation-of-Transgender-and-Non-Binary-Athletes-March-2021-5.pdf. But see Paul Krotz, PHF Updates Transgender and Non-Binary Inclusion Policy, Premier Hockey Fed’n (Oct. 15, 2021) (removing all hormone requirements for transfeminine athletes), https://www.premierhockeyfederation.com/news/phf-updates-transgender-and-non-binary-inclusion.
See David J. Handelsman, Circulating Testosterone as the Hormonal Basis of Sex Differences in Athletic Performances, 39 Endocrine Rev. 803, 805 (2018); Antonella LoMauro & Andrea Aliverti, Sex Differences in Respiratory Function, 14 Breathe 131 (2018).
See Suzy Weiss, Watching Lia Thomas Win, Common Sense (Feb. 21 2022), https://bariweiss.substack.com/p/watching-lia-thomas-win?utm_source=url.
Interestingly, while ability differences may be necessary to keep categories from being viewed as stigmatic, their existence may not always be sufficient to prevent such a perception. Indeed, sometimes even when there are likely sex-based ability differences, as is the case with math aptitude at the highest level, making sex an eligibility criteria for awards and prizes and having different prizes for women and men may be viewed as stigmatic because it reinforces a distinction about that about which we are not as a society comfortable and would seemingly like to ignore. Indeed, when Larry Summers, then president of Harvard University, suggested that innate ability differences between girls and boys at the highest levels of math ability might be in part responsible for women’s underrepresentation on math and engineering faculties, his comments received widespread criticism. See Sam Dillon, Harvard Chief Defends His Talk on Women, N.Y. Times (Jan. 18, 2005) https://www.nytimes.com/2005/01/18/us/harvard-chief-defends-his-talk-on-women.html; Marcella Bomvardieri, Summers’ Remarks on Women Draw Fire, Bost. Globe (Jan. 17, 2005), https://archive.boston.com/news/education/higher/articles/2005/01/17/summers_remarks_on_women_draw_fire; Daniel J. Hemel, Summers’ Comments on Women and Science Draw Ire, Harv. Crimson (Jan. 14, 2005), https://www.thecrimson.com/article/2005/1/14/summers-comments-on-women-and-science/; see also Diane F. Halpern et al., The Science of Sex Differences in Science and Mathematics, 8 Psych. Sci. Pub. Int. 1 (2007).
See Note, Cheering on Women and Girls in Sports: Using Title IX to Fight Gender Role Oppression, 110 Harv. L. Rev. 1627 (1997); Title IX and the Rise of Female Athletes in America, Women’s Sports Found. (Sept. 2, 2016), https://www.womenssportsfoundation.org/education/title-ix-and-the-rise-of-female-athletes-in-america/; Ruth Igielnik, Most Americans Who Are Familiar with Title IX Say It’s Had a Positive Impact on Gender Equality, Pew Rsch. Ctr. (Apr. 21, 2022), https://www.pewresearch.org/fact-tank/2022/04/21/most-americans-who-are-familiar-with-title-ix-say-its-had-a-positive-impact-on-gender-equality/; Sport for Generation Equality: Advancing Gender Equality in and Through Sport, UN Women (Mar. 10, 2020), https://www.unwomen.org/en/news/stories/2020/3/news-sport-for-generation-equality; United Nations, Women, Gender Equality and Sport (2007), https://www.un.org/womenwatch/daw/public/Women%20and%20Sport.pdf; Lyndsay M. C. Hayhurst et al., Introducing Sport, Gender and Development: A Critical Intersection (2021).
This is what is required by Title IX. See 34 C.F.R. 106 (2001); see also Title IX 1979 Policy Interpretation from the OCR of the Department of Education, 44 Fed. Reg. (Dec. 11, 1979), https://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html.
Nancy Hogshead-Makar, for example, has suggested that one possible remedy for what she perceives as the unfair inclusion of transgender girls in girls’ sports is to have transgender girls compete in their own leagues. See Louisa Thomas, The Trans Swimmer Who Won Too Much, New Yorker (Mar. 17, 2022) (“Hogshead-Makar has suggested that, in some sports, trans women should occupy their own classification, apart from women, and proposed to me that Thomas be allowed to swim in a separately demarcated lane, next to the eight set aside for cisgender women, and have her own podium.”); see also Sports Should Have Two Categories: Open and Female, Economist (Mar. 19, 2022), https://www.economist.com/leaders/2022/03/19/sports-should-have-two-categories-open-and-female; Joanna Haper et al., Implication of a Third Gender for Elite Sports, 17 Curr. Sports Med. Reps. 42 (2018); Niamh Lewis, British Triathlon Creates Open Category for Transgender Athletes, ESPN (July 6, 2022), https://www.espn.com/olympics/story/_/id/34200332/british-triathlon-creates-open-category-transgender-athletes.
See Katie Barnes, Young Transgender Athletes Caught in the Middle of States’ Debates, ESPN (Sep. 1, 2021), https://www.espn.com/espn/story/_/id/32115820/young-transgender-athletes-caught-middle-states-debates.
Michelle M. Johns et al., Transgender Identity and Experiences of Violence Victimization, Substance Use, Suicide Risk, and Sexual Risk Behaviors Among High School Students—19 States and Large Urban School Districts, 2017, 68 CDC Morbidity & Mortality Weekly Rep. 67 (2019), https://www.cdc.gov/mmwr/volumes/68/wr/mm6803a3.htm.
Play to Win: Improving the Lives of LGBTQ Youth in Sports, Hum. Rts. Campaign, https://assets2.hrc.org/files/assets/resources/PlayToWin-FINAL.pdf (last visited Nov. 18, 2022).
Lockwood, supra note 23, at 2; see also George R. Goethals & John M. Darley, Social Comparison Theory, in Social Comparison Processes: Theoretical and Empirical Perspectives 259 (Jerry M. Suls & Richard L. Miller eds., 1977) (showing that individuals use those similar to themselves as a source of information); Karl L. Hakmiller, Need for Self-Evaluation, Perceived Similarity and Comparison Choice, 1 J. Experimental Soc. Psych. Supplement 49 (1966) (same). Ladd Wheeler, Motivation as a Determinant of Upward Comparison, 1 J. Experimental Soc. Psych. Supplement 27 (1966) (showing that people compare to those who are similar in terms of overall performance level on ability-related tasks).
See Lockwood, supra note 23, at 37 (showing that women were more inspired by outstanding female role models than male role models, but gender did not have the same effect for men); E.J. Parks-Stamm et al., Motivated to Penalize: Women‘s Strategic Rejections of Successful Women, 34 Personality & Soc. Psych. Bull. 237 (2008) (finding that in-group role models are more important for minority group members and less important for members of majorities or positively stereotyped groups).
“According to the 2015 U.S. Transgender Survey:
Nearly half (46%) of respondents were verbally harassed in the past year because of being transgender.
Nearly one in ten (9%) respondents were physically attacked in the past year because of being transgender.
Nearly half (47%) of respondents were sexually assaulted at some point in their lifetime and one in ten (10%) were sexually assaulted in the past year. In communities of color, these numbers are higher: 53% of Black respondents were sexually assaulted in their lifetime and 13% were sexually assaulted in the last year.
72% of respondents who have done sex work, 65% of respondents who have experienced homelessness, and 61% of respondents with disabilities reported being sexually assaulted in their lifetime.
More than half (54%) experienced some form of intimate partner violence, including acts involving coercive control and physical harm.”
See Thekla Morgenroth, How Role Models Affect Role Aspirants’ Motivation and Goals 33 (2015) (Ph.D. thesis, University of Exeter) (explaining that ”shared group membership per se is not the characteristic that matters [for effective role modeling] but rather whether the person who might serve as a role model is seen as an ingroup member by the role aspirant”).
See Barnes, supra note 119 (describing how parents do not care about transgender girls’ inclusion in sports when the transgender girls are not winning competitions). The fact that transgender boys are not seen as likely to beat cisgender boys in competitions probably also explains why there is little controversy over transgender boys competing against cisgender boys.
There is not enough evidence or study of transgender athlete performance yet to know if on average transgender athletes will perform better than their cisgender peers, but at least some research suggests this might be the case in some sports. See T. A. Roberts et al., Effect of Gender Affirming Hormones on Athletic Performance in Transwomen and Transmen: Implications for Sporting Organisations and Legislators, 55 Br. J. Sports Med. 577 (2021) (finding in a study of 46 transwomen in the United States Air Force that after two years of taking feminizing hormones, transwomen had lost their performance advantage over their female counterparts in push-up and sit-up tests but were still 12% faster than their female counterparts in a 1.5-mile run (down from being 21% faster before beginning hormone treatment)). But see Joanna Marie Harper, Race Times for Transgender Athletes, 6 J. Sporting Cultures & Identities 1 (2015) (finding, in a study of eight transwomen who were over thirty years of age and not elite runners, in distance-running events the transgender women had on average similar age-graded performance scores as women as they had pre-transition as men).
See Les Carpenter, Lia Thomas Broke No Records at the NCAA Championship but Left Plenty of Questions, Wash. Post (Mar. 20, 2022), https://www.washingtonpost.com/sports/2022/03/20/lia-thomas-ncaa-swimming-championships-questions/ (discussing the controversy around testosterone levels sparked by Lia Thomas’s performance at the NCAA championships).
According to a letter from teammates complaining about Lia’s participation on the women’s team, Lia’s rankings “bounced from #462 as a male to #1 as a female.” See Josh Moody, Penn Swimmers Take Aim at Trans Teammate in Anonymous Letter, Inside Higher Ed (Feb. 4, 2022), https://www.insidehighered.com/quicktakes/2022/02/04/penn-swimmers-take-aim-trans-teammate-anonymous-letter.
Id. (noting that Lia set school records in both the 200 free and the 500 free).
David Rieder, Lia Thomas, Transgender Swimmer from Penn, Swims Fastest Times in Nation; Controversy Raging, Swimming World (Dec. 7, 2021), https://www.swimmingworldmagazine.com/news/lia-thomas-transgender-swimmer-from-penn-swims-fastest-times-in-nation-controversy-brewing/.
See John Lohn, Lia Thomas Saga: With NCAA Championships Now Here, Betrayal of Female Athletes Continues, Swimming World (Mar. 16, 2022), https://www.swimmingworldmagazine.com/news/lia-thomas-saga-with-ncaa-championships-now-here-betrayal-of-female-athletes-continues/.
Importantly, however, Thomas did not win the two other individual events in which she competed at the NCAA Championships. She placed eighth in the 100 freestyle and tied for fifth in the 200 freestyle. See Katie Barnes, Lia Thomas Finishes 8th in 100-Yard Freestyle, Final Race of Collegiate Swimming Career, ESPN (Mar. 19, 2022), https://www.espn.com/college-sports/story/_/id/33550045/lia-thomas-finishes-8th-100-yard-freestyle-final-race-collegiate-swimming-career.
Luke Gentile, Transgender Swimmer Dominates Since Joining Penn’s Women’s Swimming and Diving Team, Wash. Exam’r (Dec. 1, 2021), https://www.washingtonexaminer.com/news/transgender-swimmer-dominates-since-joining-penns-womens-swimming-and-diving-team (describing Thomas as “dominating in the pool” and “beating the competition by significant margins”).
Bonesteel, supra note 63.
Id.
Hogshead-Makar, supra note 108.
Id.; see also Robert Sanchez, “I am Lia”: The Trans Swimmer Dividing America Tells Her Story, Sports Illustrated (Mar. 3, 2022), https://www.si.com/college/2022/03/03/lia-thomas-penn-swimmer-transgender-woman-daily-cover (describing Thomas as becoming, after her transition, “one of the most dominant college athletes in the country and, as a result, the center of a national debate”).
Aubri Spady, Swimmer Riley Gaines Trusts Gov Noem to ‘Fight for Girls’ After Competing Against Biological Male Lia Thomas, Fox News (Oct. 11, 2022), https://www.foxnews.com/politics/swimmer-riley-gaines-trusts-gov-noem-fight-girls-competing-against-biological-male-lia-thomas; see also Brooke Migdon, Conservative Group Files Title IX Complaint Against UPenn Over Lia Thomas Controversy, Hill (Mar. 17, 2022), https://thehill.com/changing-america/respect/equality/598666-conservative-group-files-title-ix-complaint-against-upenn/.
See, e.g., Jonathan Rauch, Walking the Transgender Movement Away from the Extremists, Am. Purpose (Apr. 1, 2022), https://www.americanpurpose.com/articles/walking-the-transgender-movement-away-from-the-extremists/ (describing and urging a move away from what he refers to as “radical gender ideology”).
Author notes
Judd and Mary Morris Leighton Professor of Law, Northwestern Pritzker School of Law. I thank Zach Clopton, Don Herzog, Mark Kelman, Andy Koppelman, Mac McCorkle, and Max Schanzenbach for helpful conversations and comments on earlier drafts. I thank Julie Suk and the participants at the Fordham Law School Political Theory Workshop for their insightful and engaged feedback. Finally, I would like to thank my library liaison, Jesse Bowman, for outstanding research assistance and the Judd and Mary Morris Chair for support.