National Review Online
Saturday, December 19, 2020
When the 1972 Title IX amendment to the Civil Rights Act
prohibiting “discrimination on the basis of sex” was first applied to federally
funded athletics programs, a debate about affirmative action ensued.
Conservatives worried that in requiring the ratio of male-to-female athletes to
always be the same, equality of opportunity was conflated with equality of
outcome, and men’s sports teams across the country would be needlessly
diminished (which indeed happened).
Now, Title IX is coming for women’s sports in the name of
“gender identity,” that nonsensical progressive policy permitting males to
compete against females if and when they claim transgender status. The wisdom
of this policy has become a matter of faith for almost every Democratic
legislator. The first prominent dissent came only this month from
Representative Tulsi Gabbard (D., Hawaii), who has introduced the “Protect
Women’s Sports Act” into the U.S. House of Representatives, (the Oklahoma
Republican, Representative Markwayne Mullin, is a co-sponsor).
In a statement, Gabbard said the bill “protects Title
IX’s original intent which was based on the general biological distinction
between men and women athletes based on sex.” Emphatically, this means
preserving “equal opportunity for women and girls in high school and college
sports,” as well as holding to account those “states who are misinterpreting
Title IX, creating uncertainty, undue hardship and lost opportunities for
female athletes” by allowing males to dominate and displace them.
She’s absolutely right. On account of their elevated
testosterone levels and androgenized bodies, males are generally stronger and
faster than females; a fact reflected in the 10 to 30 percent performance gap
in elite sports. But even in non-elite sports, it only takes a handful of male
athletes to completely dominate the female field; a fact clearly demonstrated
in Connecticut where two high-school-aged males (mediocre athletes in
comparison with their male peers) deprived female competitors of 15 state
championship titles and more than 85 opportunities to participate.
In that particular case, the Trump administration’s
Department of Education Office for Civil Rights, as well as the Department of
Justice, found after investigation that the state’s policy had indeed violated
Title IX. One can only hope that a Biden-Harris administration will not reverse
this decision.
In proposing the Protect Women’s Sports Act, Gabbard and
Mullin recognize the urgent need for legal protections for female athletes. As
the Supreme Court’s decision in relation to Title VII, Bostock v. Clayton County, unfortunately demonstrated, the logic of
discrimination “on the basis of sex” is corruptible in various ways. In Harris Funeral Homes v. EEOC (the
transgender case in the Bostock
package), the majority of the Court was ultimately convinced by the argument
that “gender identity” is an offshoot of sex and that, in the context of
employment, distinctions between the sexes can amount to discrimination. There
is no reason this woeful logic can’t be extended even more broadly.
In education, the collapsing of sex-based distinctions
began even more covertly in 2016 under the Obama administration’s “guidance” to
schools and colleges, telling them to expand the definition of sex to include
“gender identity.” The Equality Act, which Joe Biden and Kamala Harris have
promised to pass within 100 days of office, would finish this job: overwriting
sex with “gender identity” explicitly in federal anti-discrimination law and
spelling the end of women’s sports as we know it.
Pushback against transgender sports policies is already
being mounted at the state level. In March, Idaho became the first state to ban
biologically male athletes from competing in female sports leagues, though the
enforcement of that policy was soon halted by a federal district court at the
behest of the ACLU.
Again, a law such as the one Gabbard and Mullin propose would bring about a much-needed clarification about the meaning and purpose of Title IX and offer some protection to female athletes. Though the bill is obviously not going to pass a Democrat-controlled House, its symbolic value — Democratic dissent and a robust, nonpartisan defense of the principles of biological truth and fairness — ought not to be underestimated.
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