Congress enacted Title IX with virtually no debate over who qualified as a female athlete. How times have changed.
The landmark anti-discrimination law marks its 50th anniversary Thursday caught in a legal and political tug of war over the future of scholastic sports as transgender athletes increasingly apply to compete in the girls’ and women’s arena. The dilemma: Does progress on transgender rights threaten five decades of gains for female sports?
“Title IX has promised women so much: a fair chance to compete, opportunities to excel at college, and skills that apply to all areas of life,” said Christiana Kiefer, senior counsel of Alliance Defending Freedom. “But all of this is being threatened by the unscientific idea that a man can be a woman.”
Complicating the debate, the Title IX anniversary celebration takes place in the midst of Pride Month, throwing into sharp relief the increasing tension between the gender identity movement and women on both sides of the political aisle advocating for female opportunity through single-sex sports.
Many of the 1972 law’s defenders argue that allowing biological males in female athletics does exactly what Title IX was intended to avoid: a scenario in which female athletes are pushed aside in favor of males — in this case, males who identify as females.
Title IX of the Education Amendments prohibits discrimination based on sex in scholastic programs that receive federal funding. It has triggered a boom in girls’ high school and collegiate sports.
“Before Title IX, only 1 in 27 girls participated in sports. Today, 2 in 5 do,” said the right-leaning Independent Women’s Forum. “Despite this progress, female athletes are being sidelined in order to make room for males. This isn’t right, and it isn’t fair. It’s time to take back Title IX.”
Advocates for transgender athletes hold an entirely different view. They argue that Title IX protects women from discrimination and that should by right include transwomen.
In their legal filings, the American Civil Liberties Union and Human Rights Campaign have accused conservative states of violating Title IX by enacting laws banning male-to-female transgender athletes from female sports. A lawsuit filed last month by the ACLU of Indiana on behalf of a 10-year-old softball player claims the state’s newly approved law, which was passed by the legislature over the governor’s veto, runs afoul of Title IX and the equal protection clause of the Constitution.
“When misinformation about biology and gender is used to bar transgender girls from school sports, it amounts to the same form of sex discrimination that has long been prohibited under Title IX, a law that protects all students — including trans people — on the basis of sex and it denies the promise of the Constitution of equal protection under the law,” said Ken Falk, legal director of ACLU of Indiana.
In the ACLU’s corner is the Biden administration, which has moved to add “sexual orientation and gender identity” to official definitions of sex, overriding the Trump administration’s efforts to limit the scope to biological sex.
The Education Department now states that a “recipient institution that receives department funds must operate its education program or activity in a nondiscriminatory manner free of discrimination based on sex, including sexual orientation and gender identity.”
Democrats and LGBTQ advocates support that definition. Female athletes such as Team USA soccer star Megan Rapinoe say the uproar over transgender athletes and fairness is vastly overstated.
Ms. Rapinoe credited Title IX with giving her the opportunity to play soccer in college on a scholarship. She called herself “100% supportive of trans inclusion” in female sports.
“Show me the evidence that trans women are taking everyone’s scholarships, are dominating in every sport, are winning every title. I’m sorry, it’s just not happening,” Ms. Rapinoe told Time magazine in a Sunday interview. “So we need to start from inclusion, period. And as things arise, I have confidence that we can figure it out. But we can’t start at the opposite. That is cruel. And frankly, it’s just disgusting.”
Transgender athletes may not be taking every title when they compete, but their impact is growing. In March, swimmer Lia Thomas became the first male-born athlete to win an NCAA Division I women’s championship, three years after hurdler CeCe Telfer became the first to capture a Division II title.
The 2021 Tokyo Olympics featured at least two male-born athletes in women’s competitions: New Zealand weightlifter Laurel Hubbard and Canadian archer Stephanie Barrett. Chelsea Wolfe was an alternate on the U.S. BMX freestyle team.
That doesn’t include the collegiate and high school athletes who fly under the media radar.
At an Alliance Defending Freedom press conference Wednesday, Idaho State University track athlete Mary Kate Marshall said she has lost twice to a male athlete competing against women. Idaho adopted a Fairness in Women’s Sports Act in 2020 that might have prevented the male athlete from competing, but a court injunction immediately stayed it.
“When I lose to another woman, I assume that she trains harder than I do, and it drives me to work harder,” said Ms. Marshall. “But losing to a male feels completely different. It makes me think that no matter how hard I try, my hard work and effort won’t matter.”
She said such competition could discourage female athletes from seeking to compete in college.
“If I had known in high school I could not win or would have to compete against males, I might have dropped out of sports altogether, and I’m certain that other female athletes feel the same,” Ms. Marshall said.
Former Connecticut high school track star Alanna Smith recounted how she lost to a male-to-female transgender athlete, one of two who went on to win 15 state titles and set 17 records between them.
“Inside, I knew I had no chance of winning despite the hours of training and strong personal bests in each event. I was defeated before stepping onto the track,” said Ms. Smith, whose father is baseball Hall of Fame pitcher Lee Smith.
“I knew it wasn’t fair to me or to any of the other girls competing at the state open,” she said. “It’s hard to ignore the physical differences between us when we are lined up in the starting blocks. We know the outcome even before the race starts.”
Eighteen states have enacted laws against male-born competitors in female sports. Last week, the International Swimming Federation banned such athletes from women’s elite competition unless they complete gender transition treatment before puberty.
Opinion polls find a majority of Americans favor such restrictions. A Washington Post/University of Maryland poll last month found that 55% of respondents were against allowing transgender women and girls to compete with other women and girls in high school sports, and 58% opposed it for college and professional sports.
Ms. Rapinoe said critics and skeptics need to look at the big picture, including the high rate of suicide among transgender youths, and remember that winning isn’t everything.
“I would also encourage everyone out there who is afraid someone’s going to have an unfair advantage over their kid to really take a step back and think what are we actually talking about here,” she said. “We’re talking about people’s lives. I’m sorry, your kid’s high school volleyball team just isn’t that important. It’s not more important than any one kid’s life.”
Meanwhile, Ms. Marshall warned that the gains of Title IX could be effectively erased if biological female athletes are displaced.
“Keeping Title IX protections is as important for future generations as it was for past generations,” she said. “If we don’t stand up for women’s sports now, there likely won’t be women’s sports in the future.”