Progressive Cracks Appear on the Trans Sports Issue

B iden’s executive order on transgenderism was met with widespread concern that its provisions would be applied to Title IX and women’s sports. Such concerns were due to a lack of “context,” wrote McKenzie Sadeghi, a fact-checker for USA Today.

In explaining why “posts criticizing Biden order on gender discrimination” were wrong, Sadeghi summarized a White House statement as saying that, “The order mandates that all students, including transgender students, be able to learn without facing sex discrimination, and as part of that, transgender women should compete on female teams.”

But this extra “context” only confirms what we already knew: that educational entities receiving federal funding will be required to allow male athletes to compete against females.

This is not the first time we’ve seen executive overreach shrouded in euphemism, platitudes, and activist jargon, and passed off as a legitimate clarification of a preexisting law. In 2013, the Obama Education Department and Department of Justice issued controversial “guidance,” instructing schools to swap “gender identity” for sex in the context of sex discrimination, and thus allow students to play the sports and use the facilities of the opposite sex. The result was chaos as schools and ultimately district courts across the country scrambled to make sense of what the law actually said.

Under Trump, the Education Department and Justice Department worked hard to clean up this mess. Initially, this was done by rescinding the Obama-era guidance. Later, after a lengthy investigation, they ruled in favor of female high-school athletes in Connecticut who, having been displaced by a policy allowing male athletes claiming transgender status to compete against them, had filed a Title IX complaint with the Office for Civil Rights.

Biden’s executive order, by contrast — which is predicated on an expanded interpretation of the Supreme Court’s decision in Bostock v. Clayton County — reverses this defense of women and girls’ rights with a snap of a finger.

Though it is convenient for transgender activists to pretend otherwise, the protection of women’s sports is not necessarily a conservative issue. This fact was most recently evidenced in the launching of the Women’s Sports Policy Working Group (WSPWG), composed of women’s sports leaders such as tennis legend Martina Navratilova, law professor and NCAA champion Doriane Coleman, and Olympic swimmers Donna de Varona and Nancy Hogshead-Makar. Their motto is “Preserving girls’ and women’s sport while accommodating transgender athletes.”

Hogshead-Makar, a Title IX attorney, told USA TODAY Sports that even by its own standards, Biden’s transgender sports policy “does the cause of transgender inclusion no favors,” as it engenders a “justifiable resentment.” She has explained that while the group members “fully support the Biden executive order, ending LGBT discrimination throughout society,” they also recognize that “competitive sports” is an area that requires a “science-based approach to trans inclusion.”

Navratilova and Coleman documented evidence to support this in a 2020 op-ed:  

Team USA sprinter Allyson Felix has the most World Championship medals in history, male or female, and is tied with Usain Bolt for the most World Championship golds. Her lifetime best in the 400 meters is 49.26 seconds. In 2018 alone, 275 high school boys ran faster on 783 occasions. The sex differential is even more pronounced in sports and events involving jumping. Team USA’s Vashti Cunningham has the American record for high school girls in the high jump at 6 feet, 4 ½ inches. Last year just in California, 50 high school boys jumped higher.

Heart size, muscle mass, bone density, and blood oxygen levels are only some advantages of androgenized bodies which cannot be mitigated for. The WSPWG is merely asking Congress and the Biden administration to exclude from women’s sports those individuals who “have experienced all or part of male puberty.” In a more than reasonable compromise, they suggest separate heats, additional events, and/or handicaps that would recognize the innate advantages of male bodies.

The WSPWG is presenting itself as a centrist, nonpartisan organization. “The uncompromising vitriol in public conversations regarding the participation of transgender girls and women in girls’ and women’s sports in unacceptable,” reads its launch statement:

One side insists that transgender girls are ‘boys’ and seeks to ban them without regard to their physical sex-linked traits . . . The other side insists that transgender girls are ‘girls, period’ and seeks their full and unconditional inclusion, again without regard to their physical sex-linked traits.

Good luck to them, but in truth, the cracks within the Democratic Party on this issue are even wider than at first glance. Tulsi Gabbard, on her way out of the House of Representatives, introduced the Protect Women’s Sports Act, which, cosponsored by Republican Markwayne Mullin, would make it “a violation of federal law for a recipient of federal funds who operates, sponsors, or facilitates athletic programs or activities to permit a person whose biological sex at birth is male to participate in an athletic program or activity that is designated for women or girls.” [emphasis added]

There is a silver lining to Biden having issued his transgender order this early and this aggressively: Unlike last time, the war on women’s rights is happening in broad daylight. That makes the dangers more visible and so, too, the dissent. “If thought corrupts language, language can also corrupt thought,” wrote Orwell, and with respect to Navratilova and the other WSPWG women taking a stand, it is not “uncompromising vitriol” to say that transgender girls are boys. As USA Today “fact-checkers” remind us, context is everything, and in a debate about sex-based rights and protections, sex-based descriptions are both truthful and necessary.