The U.S. Department of Education has proposed a rule that prohibits the outright ban of transgender students in the sports of their gender identity. The rule “provides flexibility for schools to achieve important educational objectives through their athletic program. …(and will) allow schools flexibility to develop team eligibility criteria…(although) these criteria would have to account for the sport, level of competition, and grade or education level to which they apply.” Translation: each public school in the country will have to navigate these perilous waters, brace for the waves of incoming lawsuits, and then see if a judge will throw them a life raft or throw them back into the waters to try again.
There are many rooms in the mansion of transgender rights, but I want to untangle the issue of transgender women competing in women’s sports. Sports are about winners and losers. Sure, participation in sports offers opportunities for leadership, social bonds, goal setting and perseverance. But those not interested in the thrill of victory and the agony of defeat participate in yoga, book discussions, and band.
I am astonished that our society, which has planted a forest of “Science is Real” lawn signs, is willfully ignoring the fact that transgender women have a physiological advantage over biological women in the realm of competitive sports. The Y chromosome not only influences the testosterone production, but it influences hemoglobin counts, lung size, trachea length, and skeletal muscle tissue.1 Even if testosterone is later suppressed, biological males who have gone through puberty enjoy a significant legacy advantage in muscle mass and strength,2 lung capacity, and bone strength3. I am equally astonished that a culture so recently keen on equity (defined as fairness in outcomes, contrasted with fairness in opportunities), is debating whether it is fair for transgender women to compete against biological women.
How did we get to this point?
First, we need to understand that the United States has a system of common law as opposed to a system of civil law. For the purposes of this essay, the notable feature of the common law system is that the judge acts as a referee, listening to two sides of an argument, and then the decision is used as precedent upon which subsequent laws or decisions are built. (In the civil law system, the judge acts as the investigator, and the decision applies only to the specific case.) In the United States, the body of law builds and grows over time. Each decision marks a fork in the road. Decisions can be appealed and overturned (see Roe v Wade or Plessy v Ferguson), but such U-turns are not common.
Second, we need to distinguish between rights and privileges. A right is something to which you have a just or legal claim. No one can deny it to you. When the Constitution was ratified, the enumerated rights were understood as protections for the people from their government. For example, you had a right to trial by a jury of your peers. A tyrannical government couldn’t simply accuse you of a crime and throw you in jail.
A privilege, meanwhile, is distinguished from a right because it generates no obligation in any other party. You are free to do something (drive a car, paint your house pink, eat Twinkies for breakfast) but you are not required to do it, nor is anyone else obligated to provide you the car, the paint, or the Twinkies.
Third, we should differentiate between discrimination and accommodation. To discriminate is to treat an individual differently because that individual is a member of a class of people with a particular characteristic such as race, national origin, sex, or religion. You are not accepted into the university because you are Asian. You are not served at the restaurant because you are Hindu. That’s discrimination.
To accommodate is to adjust or modify something so that an individual can participate. My first job after graduating from college was as a manufacturing supervisor in a Procter & Gamble soap plant. We had an automatic filling line. A short woman in the department could not reach the control panel (which was installed when the department was staffed only by men, who are taller on average). We accommodated this woman by lowering the control panel.
Now let’s return to transgender women competing in women’s sports.
After the founding, additional rights were enshrined in the Constitution beyond the original ten listed in the Bill of Rights. For instance, the 15th amendment (1869) gave Black men the right to vote. The 19th amendment (1919) gave women the right to vote. Then, to dismantle Jim Crow laws, the Civil Rights Act was passed in 1964. This prohibited discrimination on the basis of race, color, and national origin. The Title VII section was added to explicitly prohibit discrimination in the workplace—and it added sex and religion (in addition to race, color, and national origin) to the protected categories. Not only did the Civil Rights Act protect citizens from the tyranny of their state or local governments, but now private actors (e.g., restaurant owners, employers) were required by law to protect rights.
More laws were passed. The Fair Housing Act was passed in 1968. Landlords were obligated to protect the right to equal housing. The Occupational Health and Safety Act was passed in 1970. Employers were obligated to protect the right to a safe workplace. In 1972, Title IX was passed to require equal opportunities in public education for boys and girls. (Athletics was never mentioned, except in Section 1, clause 415(b)(3), which allowed separation by sex in P.E. classes and contact sports—separate, but equal, if you will.)
It is important to note that the Constitutional amendments and the laws mentioned above were all hashed out in great public debates. Think of it: the amendments had to be ratified by the voters in three-fourths of the states. The laws were passed only after vigorous argument and compromise by our representatives in Congress. The minority lost, and the majority won, but the citizens had their say. The people were governing themselves.
The passage of these laws meant that the scope and concept of rights expanded. An unintentional cultural consequence was that the word “right” began to be thought of as the opposite of discrimination. If you can’t discriminate against me, then I must have a right to whatever it is I’m seeking.
Perhaps it was then inevitable that, using this logic, if a person didn’t like something—didn’t think it was fair or safe or whatever—he or she could sue for individual consideration. This was new! Philip K. Howard, in his book, “The Lost Art of Drawing the Line,”4 discusses this development in detail. One example from his book: in 1995 a child suffered minor injuries while playing unattended on a slide in the Oologah, Oklahoma, town park. The parents sued the city, and the city removed the slide. Did the child have a right to be safe in the park? Did it matter that for fifty years children had played on the slide to no catastrophic result? Were the rights of the other children in town considered? (Spoiler: a citizen petition to keep the slide was rejected.) Rather than debate the merits of the slide at a city council meeting, put the issue up for a town vote, and let the majority decide (and the minority prohibit their kid from playing on the slide), the city acquiesced to a lone—and loudest—voice.
As a result of this proliferation of individual lawsuits, more societal behavior began to be influenced by the outcome of lawsuits. It wasn’t always necessary to pass a law to effect change. In the wake of the McDonald’s hot coffee lawsuit (1994), for example, no laws were passed limiting the upper temperature of commercially sold coffee. McDonald’s and other franchises adjusted their behavior in response to the outcome of the lawsuit.
Keeping in mind that history, let’s return to Title IX. Since its passage in 1972, the Office of Civil Rights in the Department of Education has created numerous regulations around Title IX. (The most recent rule regarding transgender inclusion in sports is one of these regulations.) As R. Shep Melnick writes in this article, Title IX has morphed from “the classroom to the playing field to the bedroom to the bathrooms.” None of this expansion of the law has been hashed out in Congress. The courts have shown deference to these regulations, as numerous individuals have filed various lawsuits over perceived and/or real injustices. Consequently, Title IX has grown into something that would be unrecognizable to the Congress of 1972. This isn’t law by representative debate. This is law by administrative state, aided and abetted by the judiciary.
Then, in 2020 the Supreme Court ruled in Bostock v Clayton County that “sex” as used in Title VII doesn’t simply mean “man” and “woman,” but encompasses sexual preference and gender identity. (Gerald Bostock sued Clayton County, Georgia, for firing him because he is gay. Clayton County defended their decision by saying they weren’t discriminating, because they would have fired a lesbian, too.) The Supreme Court, in a divided opinion, said that the language in Title VII meant something broader than a biological distinction.
Because we have a common law system, the Bostock ruling will probably provide a precedent in any subsequent Title IX rulings. It doesn’t matter that the Bostock case is an employment case, and not an education or sports case. Over the past fifty-plus years, Title VII rulings have heavily influenced Title IX rulings. Each judicial decision builds on the ones before. Each case decision is a fork in the road, and on we go. As I pointed out with Roe v Wade and Plessy v Ferguson, there are U-turns. Sometimes earlier dissents are considered. Some cases are different enough from others that precedent from one is not applied to the next. But, as lawsuits will inevitably be filed in objection to the various transgender policies our public schools create, Bostock is likely to be influential. We shall see.
What are we left with now that the snarl has been untangled?
First, I don’t believe we carefully distinguish between discrimination and accommodation. Earlier I described the P&G soap factory. We could accommodate a short person. But there was no possible way for a blind person to work in that soap packaging department. So, we did not hire blind people to package soap. Were we discriminating against blind people? Or was that just an insurmountable reality? Should transgender women be accommodated in women’s sports? Are we discriminating against them if they cannot be accommodated? Is physiology an insurmountable reality?
Second, I believe we are careless with the idea of rights. Maybe playing on a park slide is a privilege. The child isn’t obligated to play on it, and no one is required to provide a slide for the child. But if one child has a right to have a slide removed from the playground, then the other children are left with no right to play on that slide. When everything becomes a right, debatable and applicable at the individual level, does the concept of rights lose its meaning?
Third, the pressure builds in difficult issues like transgender inclusion in sports because we don’t let off steam in Congress. We need to have raging battles in Congress. That’s our safety valve. Instead, the administrative departments craft rules and foist them on the public, which just makes everybody on both sides of the issue angry. There’s nobody to hold accountable. You can’t get any satisfaction by venting your spleen in a letter to your Representative. Who would you contact in the Office of Civil Rights in the Department of Education? Even if you could figure out who to write, that person isn’t elected. He or she can’t be thrown out of office.
Fourth, if one individual doesn’t think something in the law is fair, she can sue. Unless the judge throws out the case, the outcome of the case will affect everybody else, even if no one else had the same complaint. Like McDonald’s, school districts will adjust their behavior in an attempt to pre-emptively avoid a lawsuit. Consider that Rosa Parks didn’t sue anybody.
Finally, rights are often in tension. The right of Lia Thomas, Emily Bridges, and CeCé Telfer to swim, cycle, and run in women’s competitive events is in tension with the right of biological women to compete on a level playing field. Unlike, for example, marriage rights, where allowing gay marriage doesn’t disallow heterosexual marriage, in competitive athletics there can be only one first-place.
Whose rights take precedence? Who is right? And who will decide? An administrative agency? A judge? Or we the people?
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1Nancy Hogshead, J.D., “Dr. Mike Joyner on Sex Differences and Human Physiology,” YouTube Video, 1:06, June 7, 2022, https://www.youtube.com/watch?v=5aJg7eDzmAc
2Emma N. Hilton and Tommy R. Lundberg, “Transgender Women in the Female Category of Sport: Perspectives on Testosterone Suppression and performance Advantage,” December 8, 2020, https://www.aclu.org/wp-content/uploads/legal-documents/049-9_exhibit_i.pdf
3Bari Weiss, host, “Bigger, Stronger, Faster: The Truth About Testosterone,” Honestly (podcast), July 29, 2021, https://podcasts.apple.com/podcast/bigger-stronger-faster-the-truth-about-testosterone/id1570872415?i=1000530393666
4Philip K. Howard, “The Lost Art of Drawing the Line,” (New York: Random House, 2001)
5R. Shep Melnick, “The Strange Evolution of Title IX,” National Affairs, Summer 2018, https://www.nationalaffairs.com/publications/detail/the-strange-evolution-of-title-ix
