As the tangle of state law grows, fairness-in-women’s-sports advocates say they’ll need the Supreme Court to settle the issue.
Since former University of Pennsylvania male swimmer Lia Thomas stole a title and trophy from then-University of Kentucky swimmer Riley Gaines at the 2022 NCAA Women’s Championships, the fairness-in-women’s-sports issue has roiled American politics.
It’s been two years of lobbying by advocacy groups and activists such as Gaines to protect women’s sports from male intrusion. More than 20 Republican states have passed laws prohibiting males from competing on K–12 and collegiate female teams. But overshadowing these strides is a convoluted mess of court rulings, federal statutes and regulations, and policies adopted by the various athletics governing bodies.
“We’re headed for conflict,” Kim Jones, co-founder of the Independent Council on Women’s Sports (ICONS), told National Review. It’s going to get worse before it gets better, and she predicts the final fight may unfold at the Supreme Court.
There are currently several pending lawsuits addressing the issue of male participation in women’s sports, with both sides laying claim to Title IX to support their arguments. Title IX is the federal civil rights law that bans sex-based discrimination in any publicly funded school or education program.
In one case, Becky Pepper-Jackson — an eleven-year-old boy interested in trying out for his middle-school girls’ cross-country team — sued to enjoin a West Virginia law protecting women’s sports. Pepper-Jackson claims the law violates Title IX and the equal-protection clause of the Constitution.
A Connecticut lawsuit, revived by a U.S. appeals court last week, was brought by four female runners who claimed they were deprived of accolades and athletic opportunities because they were forced to compete against male runners. While Connecticut has no law protecting women’s K–12 sports, the state’s athletic association said males who identify as female could run in the girls’ division by declaration, without a testosterone limit. The plaintiffs’ appeal in that case also rests on Title IX.
Meanwhile, the Biden administration is preparing to finalize a regulation that would expand the definition of sex discrimination under Title IX to include gender identity. Under the rule, K–12 students can play on the team that aligns with their gender identity. The rule includes a narrow carveout for schools to create their own rules if they can prove that male participation would compromise safety.
“We have a lot riding on the administration in the White House, coming into 2024, with this being an election year,” Gaines, an Independent Women’s Forum ambassador and host of OutKick’s Gaines for Girls podcast, told National Review. “There’s a lot at stake for women’s sports. We have an administration that’s proposed a new rewrite of Title IX. They want to implement it in March, which ironically, probably strategic on their part, is women’s history month.”
Control of the House and Senate also matters a great deal, but the issue should never have become partisan, Gaines said.
Under the Biden rule’s exception, schools would have to craft a separate policy for every women’s team, from swimming to soccer, documenting the science behind the male athletic advantage in that particular sport at that particular school, Jennifer C. Braceras, director of Independent Women’s Law Center (IWLC), told National Review. While the Biden administration has spun the proposal as a compromise, most schools, which are strapped for resources and don’t want to take the chance that the Department will pull their funding, likely won’t make the effort to avail themselves of the exception, Braceras said.
“The reality, of course, is that schools won’t want to risk the loss of federal funding, so they won’t bother to go through this process,” she said. “They will just let males self-ID onto women’s teams. This isn’t fair to female athletes. But it’s more than unfair. It’s discriminatory.”
“On teams with limited roster spots, allowing any biological male to join the team takes a roster spot from a female athlete,” she added. “Allowing a biological male to take the field in a women’s soccer game means that a female athlete loses playing time. Allowing a biological male to compete in a women’s swim meet means that one less female gets to compete in that race. In each instance, the school is authorizing sex discrimination that violates Title IX.”
Several red states have passed laws to protect women’s sports, but they conflict with NCAA policy, which allows trans participants to compete in women’s categories if they undergo a year or more of testosterone suppression. From there, the organization passes the buck to the national governing body of each sport.
“I think governing bodies will continue being cowards,” Gaines said. “It’s what we’ve seen NCAA do. It’s what we’ve seen the IOC do. They don’t want any responsibility. They don’t want any accountability.”
“There’s massive conflict being set up at the NCAA level and the professional level,” Jones said.
Several Republican states have sought to avoid provoking the NCAA. A few red states, such as South Dakota, proposed women’s sports bill that applied to K–12 but not college so as to avoid legal retaliation from the well-resourced, massively influential body. In a move that conservatives slammed, South Dakota governor Kristi Noem in March 2021 vetoed her state’s GOP-backed bill to ban males from female sports, asking that college sports be exempted. Some conservatives have suggested that Republican states band together as a bulwark, as the NCAA likely couldn’t boycott all of them without losing roughly half the territory it operates in.
Many of the national governing bodies believe they’ve put the issue to bed by setting testosterone levels. However, the scientific evidence suggests that no amount of reduction in testosterone levels can negate a man’s natural physical advantages.
In February 2022, USA Swimming issued a policy requiring trans-identified men to lower their testosterone levels to 5 nmol/L or less for a period of at least 36 months, according to the most recent Competition report from the Independent Women’s Forum and IWLC. The normal 95 percent reference range for healthy menstruating women under 40 years of age is 0 to 1.7 nanomoles per liter.
“I’m confident that we win the battle of the scientific experts,” Braceras said. “But irrespective of the fairness issue, the fact remains that allowing a male athlete to replace a female athlete — on the field, in the pool, or wherever — denies a woman an athletic opportunity. And that violates Title IX, even if the male athlete never wins a single race or a single trophy.”
Even if a post-pubescent man lowered his testosterone to normal female levels, his bone density, skeletal structure, lung volume, heart size, and muscle mass would remain largely unchanged, allowing him to retain his strength and speed advantages, the report indicates. Critics of the testosterone rule have noted that Lia Thomas, for example, has a larger wingspan and narrower hips, two attributes which enhance hydrodynamics.
While males’ post-pubertal competitive benefits are well-documented, Jones emphasized that sex differences are set in stone long before birth, written in DNA. Adolescent puberty exacerbates the differences between the sexes, she said, “but it in no way constitutes the differences between the sexes.”
“There is no age and no level at which it’s fair to tell girls that they must measure their physical abilities and capabilities next to males in competition,” she said.
It will come down to the Supreme Court deciding that sex is an immutable trait “that has to be recognized in different parts of society for women to move equally through the world,” Jones said.
“The public is being misled to think that these state laws are doing enough,” Jones said. “They’re not. They need to go further and say, ‘we will not allow our girls to be put into competition with males unknowingly’”
But every state that enshrines safeguards for women’s sports represents another victory for the movement. In the next couple of weeks, Ohio may become the 24th state to pass such a law. Until the legal quagmire escalates to the Supreme Court, which Gaines agrees is likely inevitable, males will continue to intrude in the female divisions of little-known sports, she said.
“It’s happening in darts, Irish dancing, pool or billiards, fishing, and in sports that some people might not even consider sports because that’s how it starts,” Gaines said. “Not a lot of attention on it but it’s infiltrating. And finally, when it reaches the larger sports like basketball or like softball, they’ll have instances where the precedent has already been set.”
Female athletes affected by male encroachment and their allies have become bolder over the last year. That bravery will grow as the court of public opinion continues to lean in favor of women.
“I think we’ll see more and more parents, athletes, and coaches willing to take a stand,” Gaines said. “I think that will amplify to a great magnitude in 2024 as this issue continues.”