Biden’s Pretzel Logic on Men in Women’s Sports

National Review Online

Wednesday, April 12, 2023

 

Should males who identify as female be permitted to compete in women’s sports? The Biden administration says yes — but not always.

 

On April 6, the Department of Education released its much-anticipated draft rule on transgenderism in sports. The new rule would prevent educational facilities in receipt of federal funds from applying “one size fits all policies that categorically ban transgender students from participating in athletics consistent with their gender identity across all sports, age groups, and levels of competition.” Still, the department explains, “sex-related criteria that limit participation of some transgender students may be permitted, in some cases, when they enable the school to achieve an important educational objective,” such as “fairness in competition” or “preventing sports-related injury.”

 

As was predictable, the concession that sex-related characteristics may at least sometimes be relevant infuriated transgender radicals. Alexandria Ocasio-Cortez called the rule “indefensible and embarrassing.” Kelley Robinson, president of the Human Rights Campaign, demanded a clarification “to ensure that all transgender students should be presumed eligible to participate in sports consistent with their gender identity.”

 

By talking out of both sides of its mouth, the department undermines the logic of transgenderism. If sex-related criteria are relevant in some cases, why not others? Surely permitting any male to compete against females undermines not only the “important” but indeed the foundational educational objective of Title IX — equal opportunity in education, including sports, for women and girls.

 

The problem with male inclusion in female athletics is not reserved to the most egregious cases. For every male allowed to qualify in the women’s category, a female is unfairly disqualified. For every male victory in the female category, numerous female athletes are displaced (she who really won first place is bumped to second, second is bumped to third, and so on). For every male included in a females’ scholarship program, a deserving female athlete is excluded. Then there is the issue of locker rooms, where female privacy is compromised by the presence of a male.

 

It is frankly insulting to suggest that male mediocrity is equivalent to female athletic excellence.

 

Of course, the department’s rules are nothing new. In fact, they are of a piece with the 2016 Obama-era “Dear Colleague” letter which instructed schools to “treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations,” while also stating in the fine print that when it comes to athletics, Title IX allows for “tailored requirements based on sound, current, and research-based medical knowledge about the impact of the students’ participation on the competitive fairness or physical safety of the sport.”

 

The Biden administration has decided to pursue maximalist transgender policy, except when its consequences are too blatant and egregious to deny, in which case the burden of protecting women from harm falls on the school.

 

Doing so will be fraught with legal uncertainties, and schools seeking to avoid potential lawsuits may opt to permit unfair or even unsafe competition instead. Moreover, this rule opens the door to injustice for the transgender-identified themselves. A policy of sex-exclusive sports applies to everyone equally, whereas forcing schools to decide among sports and grade levels — and, as a practical matter, specific athletes — makes matters more personal and arbitrary.

 

We have seen at the New York Times, and within the field of transgender health care, some liberals trying to stake out a more moderate, “nuanced” position in the transgender debate. The Biden administration is making a feint in that direction, but the hoops it is creating for schools, how the rule will likely be implemented, and the obvious openings for advocates to sue over restrictions mean the edict will make it much more difficult to protect women’s sports.

 

According to polling, most Americans do not support allowing males in women’s sports. Period, and for good reason. Really, the solution is straightforward. Sports should be organized by sex, not identity. Title IX should stay true to its purpose.