TRANSGENDER INCLUSION AND GIRLS’ SPORTS A Look at What’s 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.

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

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.

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.

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.

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.

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.

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.

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,

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.

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.

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.

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.

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).

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.

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.

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

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.

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.

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.