1 Why Title IX Matters
52 years ago, in 1972, a federal law called Title IX was passed by Congress which required all school districts to offer girls sports and girls locker rooms on an equal basis with boys sports.
In 2021, the Biden Administration attempted to over-rule Congress and dramatically change Title IX into a regulation which would allow (trans) boys to takeover and destroy girls sports. The Biden changes included a prohibition on single-sex bathroom and locker rooms and requirements that schools and teachers use pronouns based on a student’s gender identity.
In this article, we will take a closer look at the history of Title IX, the status of the current legal and political battles and what we need to do to protect girls and stop the Trans Takeover of Girls Sports.
There are currently at least 30 million biologically female athletes in US public schools and colleges. Many draw significant physical, cognitive, motivational and emotional benefits from being able to fairly compete in female-only sports activities. If girls are required to compete with biological males, it is likely that many of these 30 million girls will suffer physical, mental, emotional and developmental harm from being forced to compete against biological boys.
As just one example, Olympic Goal Metalist Tori Bowie won the 2017 Womens World Championship by running the one-hundred-meters in a lifetime-best of 10.78 seconds.
However, in 2017, more than 15,000 male runners beat that mark in recorded competition. Tori Bowie spent many years practicing to become the best female sprinter in the world. If she was forced to compete with biological boys, Tori would not be able to win a state tournament, much less a national or world title.
Trans boy wins NCAA Womens Swimming Championship
In March 2022, a biological male who called himself Lia Thomas and who was ranked #550 when he competed as a male, beat 3 biological females to win the NCAA Women’s Swimming Title.
Allowing transgender males to change the meaning of the women’s category in sports makes as much sense as allowing 180-pound athletes into the 120-pound weight category, because larger athletes were subject to awful bullying and harassment.
High school volleyball player suffered concussion after being injured by trans athlete
Girls also face a higher risk of injury when attempting to compete against biological males who are much bigger and much stronger. For example, in September 2022, a North Carolina female high school volleyball player named Payton McNabb was severely injured when she was hit in the face by a volleyball spiked at her by a Trans biological male. Here is an image of her just after impact. See Payton in the lower left corner:
https://nypost.com/2023/04/21/nc-volleyball-player-urges-transgender-ban-for-schools-female-sports/
Payton urged the North Carolina state legislature to pass a bill banning transgender athletes born male from playing on female sports teams:
“Due to the North Carolina High School Athletic Association policy allowing biological males to compete against biological females, my life has forever been changed. I’m not here for me because I know that my time playing is coming to an end. I’m here for every biological female athlete behind me. My little sister, my cousins, my teammates. Allowing biological males to compete against biological females is dangerous. I may be the first to come before you with an injury, but if this doesn’t pass, I won’t be the last.”
Payton said she still struggles with the effects of her injuries, including impaired vision, partial paralysis on the right side of her body, unremitting headaches, anxiety and depression. The bill is called the Fairness in Womens Sports Act. It passed the North Carolina House by a vote of 73 to 39 with all Republicans and three Democrats voting for it.
If Trans boys are allowed to take over girls sports, girls everywhere would quickly get the message that they had no chance of winning and therefore not even try. Losing any hope of fair competition, girls would certainly exercise less and therefore the obesity rate among girls would surely rise. Moreover, the loss of female only bathrooms, locker rooms and showers would deprive girls of their privacy and dignity.
As one example, Blake Allen was a 14 year old girl on her high school girls volleyball team in Vermont. She and many of her teammates did not feel safe after a biological Trans 14 year old boy joined the girls team and began using the girls locker room where he would undress and stare at the girls as they changed clothes.
Blake complained to school administrators that boys should not be allowed in the girls locker room. In response, Blake was suspended from school. When Blake’s Dad, who was the High School Soccer coach, complained about boys in the girls locker room, he was fired from his coaching job. https://www.youtube.com/watch?v=YsXjVReeguU
In the following 9 minute video, Blake and 3 of her teammates (as well as several of their moms and dads) spoke out against boys in the girls locker room and against boys in the girls bathroom: https://www.youtube.com/watch?v=ujwHyvDSi1A
An international group of women athletes wrote the Declaration on Womens Sex-based Rights. They assert that allowing males in locker rooms intended for females should be prohibited as sex discrimination:
In my own school district, my daughter told me that none of the girls felt safe with boys in the girls bathrooms. The girls eventually created “gangs of girls” to stand guard in the bathroom to prevent boys from harassing them.
Clearly, allowing biological boys into girls bathrooms and girls locker rooms causes so many female students to feel unsafe that many would leave public schools altogether – and thereby be deprived of their right to a public education. It is time to end this insanity and restore the right of all biological girls to feel safe and be treated fairly when they compete in girls sports.
2 Washington State Superintendent falsely claimed that Title IX requires allowing Trans boys to compete in girls sports
During a League of Women Voters candidate forum in Spokane, Washington on May 20, 2024, a student asked the candidates for State Superintendent if biological boys who have become transgender athletes should be allowed to participate in girls sports.
In response, the current State Superintendent, Chris Reykdal, falsely stated that a federal law called Title IX requires transgender biological boys must be allowed to participate in girls sports. Here is his quote from the forum:
“This is federal law already. Title IX federal law as well as our Human Rights Commission make it very, very clear that students get to participate based on the gender to which they identify. So that's federal law. And there is nothing we get to change about that.”
In fact, the current federal law prohibits biological males from participating in girls sports – but the Biden administration is trying to change the law to require allowing Trans boys to compete in girls sports.
The “Human Rights Commission” that Reykdal referred to has written an 8 page report summarizing Washington state law on gender discrimination. You can read their report at this link: https://www.hum.wa.gov/sites/default/files/public/publications/Updated%20SO%20GI%20Guide.pdf
Here is a quote from the report: “Washington Law Against Discrimination prohibits discrimination on the basis of sexual orientation and gender identity in the areas of employment, housing, public accommodation, credit, and insurance.”
Nowhere in the report does it mention requiring that Trans boys be allowed to take over girls sports. So Reykdal’s claim that Title IX and the Human Rights Commission make it “very, very clear” that Trans boys can take over girls sports is completely false. Title IX protects the rights of biological girls and the Human Rights Commission rules do not apply to boys wanting to compete in girls sports.
Here is Superintendent Candidate David Olson’s answer to this question :
“I personally do not agree with trans athletes, males competing against females. I do not agree with that. We've seen all across the country where a biological male that identifies as a female that might have come in last in male sports suddenly is winning female sports by 20 to 30 yards. I don't know if that's fair to females.”
As we will explain in this report, Chris Reykdal’s statement about Title IX is not accurate. The truth is that the Biden administration is attempting to radically change Title IX – but this change is currently being litigated in federal court. The actual meaning of Title IX is likely to be decided by the US Supreme Court in the coming year.
However, since five lower courts have already ruled against the Biden changes to Title IX, it is likely that the current meaning of Title IX, which uses biological sex instead of gender identity to participate in girls sports will be retained.
The battle will then likely shift from federal courts to state courts. Because education is one of the rights reserved to the states in the US Constitution, it is possible and even likely that each state will be able to decide whether or not to allow Trans boys to take over girls sports.
Obviously, if Chris Reykdal is re-elected, he will allow Trans boys to take over and destroy girls sports. However, if David Olson is elected, he will protect the rights of girls and oppose Trans boys from taking over and destroying girls sports.
Therefore, one of the most important steps we can take to protect girls privacy and girls sports in Washington state is to actively oppose Chris Reykdal and support the election of David Olson for State Superintendent.
3 Original Intention of Title IX
Historically, public schools tended to offer only boys sports such as boys soccer and boys basketball. Some parents of girls felt that when public education dollars are being spent on sports programs, that these public education dollars should go equally to both girls and boys sports programs. In response to the demand to offer girls sports programs, in 1972, Congress passed a law called Title IX – a law which is enforced by the US Department of Education Office of Civil Rights. Title IX protects students from discrimination based on sex in education programs or activities that receive federal financial assistance. Title IX states:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
This Title IX federal law applies to every school district in every state and also to all colleges and universities that receive federal funding. In practical terms, Title IX meant that if a school did not offer girls their own sports team, such as girls soccer and girls basketball, that the school must allow the girl to participate with the existing boys soccer or basketball team. In reality, Title IX led to the creation of girls sports teams and girls sports leagues in school districts all across America. Each school district was responsible for establishing their own girls sports teams but it became common practice to offer girls track, girls volley ball, girls soccer, girls basketball and girls softball with some school districts offering additional girls sports.
Since its enactment in 1972, Title IX has led to an explosion in the participation of girls and women in sports. During the 1971-1972 school year, only 7 percent of high school athletes were girls. In the 2010-2011 school year, by comparison, girls made up over 41 percent of all high school athletes.
There are two key points to the evolution of girls sports. First, each school district and each state was involved in the decision making process of how to comply with this federal law. It was not a one-size-fits-all mandate. Second, not all sports were treated the same way.
For example, there was no movement to establish girls football teams or girls football leagues. Perhaps the concern was that there was too great a risk of injury. It is a fact that football does have a risk of injury and some parents believe that football should not be offered in public schools. However, other parents want football to be offered and most school district school boards have voted to continue to offer football as a boys sport. Therefore, if a girl wants to try out for a football team, in most school districts, she has a Civil Right to try out for the boys football team.
It would be up to the local school board if they wanted to create a girls football team. The local school board could also vote someday to cancel the boys football team. But it is not up to the federal government to determine which sports are offered to girls or boys or both. It is up to each local school board.
Thus, sports is a “local control” issue to be decided by each school board after hearing from their local parents (who are the ones who pay the taxes for their local schools). All that is required by Title IX is equal treatment of each sex in education programs or activities receiving federal dollars.
4 Legal Actions opposing attempts to change Title IX
For 45 years, from 1972 to 2017, there was very little debate about Title IX other than the claim by some parents that more money was spent on Boys sports than on Girls sports. Over time, more money has been allotted by local school boards to Girls sports. However, it is likely that more public education money is still being spent on Boys sports than Girls sports – largely because school boards have consistently voted to spend huge amounts of money on their football teams – including building expensive football stadiums.
The key point is that this is also a local decision. No school district or state has been accused of violating Title IX or threatened with the loss of federal funds just because the school district school board voted to build an expensive football stadium with their local tax dollars.
However, in June 2021, the Biden administration announced that they would change the interpretation of Title IX to include discrimination of students based on gender identity. In response, at least 22 states passed laws banning biological males from participating in girls sports (see map).
The dispute between the Biden administration and these 26 states meant that it was up to federal courts to decide what the word “sex” in Title IX actually means. In 2022, Attorneys General for 26 states sued the Biden administration in federal court.
The 22 attorneys general involved in the first of seven lawsuits are from Alabama, Alaska, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and West Virginia.
The lead author of the first lawsuit was Tennessee Attorney General Herbert Slater. He stated: “This case is, yet again, about a federal agency trying to change law, which is Congress’ exclusive prerogative.”
On January 5, 2023, a West Virginia federal judge Joseph Goodwin, sided with the 22 Attorneys Generals, ruling that the Biden administration new Title IX policies infringed on states’ right to enact laws, such as banning students from participating in sports based on their gender identity.
The court essentially said that “biological sex” is different from “gender identity.” Here is a link to this 23 page ruling:
https://dm1l19z832j5m.cloudfront.net/public/2023-01/BPJ-v-West-Virginia-State-Board-Ed-2023-01-05-Order-and-Opinion.pdf
A three judge panel of the 6th Circuit voted two to one to put the state law on hold while they considered the dispute. The 22 states then took the matter to the US Supreme Court.
In April 2023, the US Supreme Court (with two judges dissenting) allowed a 12-year-old transgender girl (biological boy) in West Virginia to continue competing on her middle school’s girls sports teams while the lawsuit over a state ban on boys in girls sports continues to make its way through the courts. The Supreme Court did not provide any explanation for its action. But it apparently wants the three judge panel to make a ruling before taking any action.
This lawsuit is still working its way through the federal courts. However, as of June 22, 2023, the injunction against the Biden administration regarding their 2022 rule change remains in effect as does the injunction against the state rule. See Tennessee v. U.S. Dep’t of Educ., No. 22-5807 (6th Cir.) (argued Apr. 26, 2023, but Opinion not yet issued.)
Meanwhile, on November 6, 2023, a federal judge, Roy Altman, issued a 39 page decision that upheld a Florida law banning biological boys from participating in girls sports. The court ruled that the word “sex” in Title IX means biological sex and does not include “gender identity.”
Altman said he found that “promoting women’s equality in athletics is an important governmental interest”. Altman based his ruling on a similar Title IX ruling by the US Court of Appeals in December 2022. Here is a link to his 39 page ruling which links to the 2022 ruling.
https://adfmedialegalfiles.blob.core.windows.net/files/DeSantisDistrictCourtRuling.pdf
However, in April 2024, the Biden administration issued new Title IX “Final Rule” changes scheduled to take effect on August 1, 2024. The new Title IX Final Rules “would preempt” “any State or local law” conflicting with them. Id. at 41,404; see also id. at 41,569 (to be codified at 34 C.F.R. § 106.6(b)).
The initial 2022 proposed rule changes drew more than 238,987 comments – a new record for any Department of Education rule change. So this is obviously a controversial issue that a lot of people care about. Here is a link to the Comments which were overwhelmingly opposed to the rule change:
https://www.regulations.gov/document/ED-2021-OCR-0166-0001/comment
The April 2024 proposed “athletic” rule change drew more than 156,000 comments – also opposed to the rule change. Here is a link to these comments:
https://www.regulations.gov/docket/ED-2022-OCR-0143/comments
It should be noted that a substantial rule change is usually assigned a 60 day comment period and the April 2024 rule change was only given 32 days. Had it been given the usual 60 days, it is likely another new record would have been set with total comments exceeding 500,000.
On April 29, 2024, the Final version of the Final Rule was published. The final rule ignored hundreds of thousands of comments that were opposed to it and made essentially no changes to the new rules.
In response to the Biden Title IX “Final Rule” changes, on April 30, 2024, Tennessee Attorney General Herbert Slater joined an additional Title IX lawsuit with several other states asking the federal court to block the new Biden Final rules. Here is a link to their 799 page complaint:
https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2024/pr24-40.pdf
This link also includes Exhibit A - the entire Final Rule beginning on page 87 to page 509. The final rule is 424 pages long. The link also includes Exhibit B which is the 16 page comment from 20 states. The link also includes Exhibit C which is a 19 page summary by states. The link also includes Exhibit D a 20- page summary by the Indiana Attorney General.
Here is a quote from page 43 of the complaint: “While the Final Rule’s jargon is complex, the new bottom line for the nation’s schools is simple: All federally funded elementary, middle, high, and post-secondary schools must generally adopt students’ gender identity and ignore their sex, or else face Title IX sanctions.”
Essentially, they argue that the word “sex” is different from the word “gender” and that Title IX law can only be revised by Congress, not by the Biden administration. But in addition, they point to rule changes that clearly interfere with our First Amendment right to freedom of religion and freedom of speech:
“Under the Final Rule, repercussions risk running to any speech or religious expression that might reasonably be deemed “unwelcome,” “offensive,” and “limiting” of a student’s educational participation or benefit.”
On page 55, the plaintiffs state: “The Final Rule instructs that Title IX administrators are to take “prompt” action to investigate and respond to any speech that “reasonably may” constitute harassment. Id. At 33,509, 33,533, 33,562. Such responses might include “educational programming” or “employee training,” id. at 33,599, as well as “emergency removal” of alleged offenders from educational programs and activities, id. at 33,616; see also id. at 33,890 (amended 34 C.F.R. § 106.44(h))… no State can protect teachers’ and students’ right not to speak in ways that a student might view as offensive to the student’s subjective gender identity.”
Therefore, any statement made by any student or teacher that is unwelcome by the offended student – including accidentally using the wrong pronoun - could result in the emergency removal of the student or teacher who made the offending statement – even if no offensive was actually intended. If the teacher is removed for saying the wrong thing, who will be left to teach the class?
This new rule is therefore contrary to recent federal court rulings that students and faculty could not be required to use words and pronouns that they believed were not true or accurate. Ignoring the First amendment right to freedom of speech also would violate many state constitutions which have a separate and often stronger right to freedom of speech.
Here is a quote from page 74: “The Final Rule impermissibly conditions federal funding on States’ and school recipients’ taking unconstitutional actions against faculty and students for engaging in protected expression. See South Dakota v. Dole, 483 U.S. 203, 210-11 (1987); infra ¶¶ 242-44. “ Also see Meriwether, 992 F.3d at 498-500, 505, 512 and 514
Plaintiff state Attorneys Generals also argue that the new rules ignore the right of each state to set their own school policies.
“The Final Rule thus forces Tennessee to choose between enforcing its own laws and losing about $1.5 billion in federal funds on which important programs at every level of Tennessee education depend. “
Here is a quote from page 777 by Courtney DeSoto, parent of a current high school track athlete: “I am the parent of a minor daughter who runs varsity track in a public school in California. A male freshman joined the women’s team this year and is running varsity track and winning every race while the girls watch in bewilderment. The same individual is using the girls locker room to change and shower. The girls are so uncomfortable that some are not using the girls locker room themselves anymore. The head coach is about to quit over the injustice of it all. Complaints and concerns for the girls are made to school and district administration. But no one is willing to say anything because our state laws and legislators will not protect our daughters.”
For the latest status of this case, see this link: https://dockets.justia.com/docket/kentucky/kyedce/2:2024cv00072/104801
On June 11, 2024, a federal judge in Texas struck down the Biden Administration proposed change to Title IX.
US Federal Judge Reed O'Connor Title IX issued a 112 page ruling sided with Texas Attorney General Paxton. The judge accused the Biden Administration of pushing an "agenda." O’Connor concluded that the Education Department did not have the authority to radically change Title IX of the Education Amendments of 1972. Here is a link to his ruling: https://storage.courtlistener.com/recap/gov.uscourts.txnd.377970/gov.uscourts.txnd.377970.37.0.pdf
Here are some quotes from his ruling: “Title IX provides that “no person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
“the plain meaning of the term sex as used in § 106.33 when it was enacted by [the Department] following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.”
The Texas Education Code prohibits school districts from allowing “a student to compete in an interscholastic athletic competition sponsored or authorized by the district or school that is designated for the biological sex opposite to the student’s biological sex.”
Consistent with the biological reality of sex, Carroll ISD precludes district employees from “requiring the use of pronouns that are inconsistent with a student’s or other person’s biological sex.”
On April 29, 2024, the Department published a new Title IX regulation: (the “Final Rule”). To prevent the Final Rule from taking effect, various lawsuits arose around the country. By the Court’s count, there are seven such cases:
Texas, et al. v. United States, 2:24-cv-00086-Z (N.D. Tex. Apr. 29, 2024);
Alabama, et al. v. Cardona, 7:24-cv-00533-ACA (N.D. Ala. Apr. 29, 2024);
Louisiana, et al. v. U.S. Dep’t of Education, 3:24-cv-00563-TAD-KDM (W.D. La. Apr. 29, 2024);
Tennessee, et al. v. Cardona, 2:24-cv-00072-DCR-CJS (E.D. Ky. Apr. 30, 2024);
Arkansas, et al. v. U.S. Dep’t of Education, No. 4:24-cv-00636-RWS (E.D. Mo. May 7, 2024);
Kansas, et al. v. U.S. Dep’t of Education, No. 5:24-cv-04041-JWB-ADM (D. Kan. May 14, 2024);
Carroll Indep. Sch. Dist. v. U.S. Dep’t of Education, No. 4:24-cv-00461-O (N.D. Tex. May 21, 2024)
All related cases have a pending motion for preliminary injunction seeking to enjoin the Final Rule. As of this date, no court has ruled on those preliminary injunctions. However, one sister court previously addressed the same Guidance Documents at issue here (the “Tennessee Case”).
Tennessee, et al. v. U.S. Dep’t of Educ., et al. (Tennessee Case), 615 F. Supp. 3d 807, 830 (E.D. Tenn. July 15, 2022), appeal filed, No. 22-5807 (6th Cir. 2022).
In the Tennessee Case, Judge Charles Atchley granted a preliminary injunction on July 15, 2022, enjoining Defendants—along with the Equal Employment Opportunity Commission and its Chair, Charlotte Burrows—from implementing the Guidance Documents against the plaintiffs to the lawsuit—the states of Tennessee, Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia.
This preliminary injunction was appealed to the Sixth Circuit and remains pending. However, treating people consistent with their subjective gender identities—is directly at odds with Title IX. Contrary to Title IX’s text, the (Biden Proposed) Guidance Documents actually condemn separating students based on their biological sex, including as it pertains to the use of restrooms, and if school sports competition was not separated by sex, the great bulk of the females would quickly be eliminated from participation and denied any meaningful opportunity for athletic involvement.”
Rather than promote the equal opportunity, dignity, and respect that Title IX demands for both biological sexes, Defendants’ Guidance Documents do the opposite in an effort to advance an agenda wholly divorced from the text, structure, and contemporary context of Title IX.
To allow Defendants’ unlawful action to stand would be to functionally rewrite Title IX in a way that shockingly transforms American education and usurps a major question from Congress.
Therefore, the Court DECLARES that the (Biden Proposed) Guidance Documents are unlawful.
In a statement, Ken Paxton applauded Tuesday's ruling, saying in part, "Texas has prevailed on behalf of the entire nation."
That lawsuit, along with a separate one filed by Republican state attorneys general in Louisiana, Mississippi, Montana and Idaho, argued the regulations unlawfully interpret Title IX in a way that conflicts with the statute's text, which they said defines "sex" as a person's biological sex.
A third lawsuit, by Alabama, Florida, Georgia, South Carolina and three advocacy groups, challenged that provision as well as parts of the regulations they said broadens the definition of sex-based harassment and required schools to overhaul how they address complaints.
A federal judge in Tennessee in 2022 had already blocked the Education Department from enforcing the guidance in 20 Republican-led states that had separately sued to strike it down. The Biden administration is appealing that decision.
On June 13, 2024, another US District Judge, Terry A. Doughty blocked the new Title IX rule from taking effect in Idaho, Louisiana, Mississippi and Montana. Here is a link to his 40 page ruling: https://storage.courtlistener.com/recap/gov.uscourts.lawd.205659/gov.uscourts.lawd.205659.53.0.pdf
Judge Doughty called the new proposed rule an “abuse of power” and a “threat to democracy.”
On June 17, 2024, another federal judge issued an opinion. US District Judge Danny Reeves granted preliminary injunction blocking Biden revision of Title IX in Kentucky, Ohio, Tennessee, Virginia and West Virginia. Reeves in his 93-page decision said, “There are two sexes: male and female. Title IX’s drafters meant “male” and “female” when they wrote “on the basis of sex.” Here is a link to this ruling: https://westvirginiawatch.com/wp-content/uploads/2024/06/TITLEIX-Injunction-EDKY.pdf
Here is a quote from this ruling:
Title IX was enacted for the protection of the discrimination of biological females. However, the Final Rule may likely cause biological females more discrimination than they had before Title IX was enacted. Importantly, Defendants did not consider the effect the Final Rule would have on biological females by requiring them to share their bathrooms and locker rooms with biological males. Further, by allowing biological men who identify as a female into locker rooms, showers, and bathrooms, biological females risk invasion of privacy, embarrassment, and sexual assault. This result is not only impossible to square with Title IX, but with the broader guarantee of educational protection for all students.
Current Legal Status of Title IX
As of June 20, 2024, 26 states have filed lawsuits challenging the Biden Title IX rule change. 15 states (including Washington state) filed briefs in support of allowing trans boys to invade girls locker rooms and destroy girls sports.
So far 5 federal judges have issued lengthy rulings in favor of protecting girls, girls bathrooms and girls sports from trans boys. All five federal judges have sided with various state laws banning biological boys from participating in girls sports and five have concluded that the word “sex” in Title IX means biological sex and not “gender identity.”
While the US Supreme Court did agree with a lower court panel to put the laws on hold while the appeals are proceeding, this does not mean that the Supreme Court will ultimately side with the Biden administration Department of Education policy change. It is likely that the three judge panel, which heard oral arguments in April 2024, will issue a ruling in the next two months. Then, regardless of which way the three judge panel rules, the Supreme Court will be forced to decide this issue later in 2024 or in 2025. Alternately, depending on the outcome of the 2024 election, a new Congress might clarify the meaning of Title IX in the 2025 session – in which case a Supreme Court decision may not be needed.
5 Science confirms huge performance differences between males and females
An expert report by Dr. Gregory A. Brown, an exercise science professor at the University of Nebraska, sheds some light on how policies that allow men to compete against women harm female athletes.
Similarly gifted and trained males have physical advantages over females—from greater height and weight and larger, longer, and stronger bones to larger muscles and higher rates of metabolizing and releasing energy. These innate physiological traits result in greater muscle strength; stronger throwing, hitting, and kicking; higher jumping; and faster running speeds for males, all of which create an athletic edge over females. For example, despite greater body weight, males have a roughly 15-20 percent jumping advantage over women. When examining the vertical jump needed in volleyball, one study found that on average male players jumped 50 percent higher during an “attack” at the net than female players.
In another report, Dr. Brown elaborates: “[I]t is obvious that some effects of male puberty that confer advantages for athletic performance—in particular bone size and configuration—cannot be reversed once they have occurred.” He goes on to demonstrate how puberty creates height and mass differences that provide a significant advantage for males. And no amount of testosterone blockers can compensate for that advantage.
For the past several decades, female athletes have seen their opportunities grow steadily. The average number of collegiate women’s sports teams has more than tripled since Congress passed Title IX of the Education Amendments of 1972.
And in that same time span, women have also been given the opportunity to compete in more events at the Olympics. In fact, many of America’s most famous Olympic athletes are women, such as Serena Williams, Simone Biles, and Katie Ledecky.
Dr. Brown’s research shows that if female athletes are forced to compete against males, even these Olympians would not have a fair chance to compete. And young girls would never get the opportunity to fulfill their dreams, no matter how hard they worked.
Sex differences between males and females begin during development in the womb and continue throughout the lifespan. Sex differences which impact athletic performance occur even prior to puberty. For example, measurement of cardiovascular capacity in pre-puberty school children show that VO2 max is consistently higher in boys than girls, attributed to the ability of a boy’s heart to pump more blood with each heartbeat. https://pubmed.ncbi.nlm.nih.gov/16183768/
Physical capabilities studies in elementary children show boys outperform girls in aerobic fitness, strength, speed, and agility; girls outperform boys only in balance and flexibility.
https://pubmed.ncbi.nlm.nih.gov/22561975/
These physiologic differences that drive athletic performance explode with puberty. In male puberty, circulating testosterone rises to 30 times pre-puberty levels with post-puberty levels being 15-20-fold greater than females of any age. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6391653/
Boys undergo significant physiologic changes relative to girls: even greater height, leaner body mass, greater muscle mass, greater muscle strength, larger lungs, bigger airways, and greater cardiac capacity. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7846503/
Testosterone suppression does not level the playing field. After one year of testosterone suppression for males, thigh muscle mass is reduced by 9% but still remains 16% higher compared to females. Reduction in muscle strength is only 5%. In the longest follow-up study published, males with 14 years of testosterone suppression remain 20% stronger and have 20% greater heart and lung capacity than females. Male advantage is not erased even with over a decade of testosterone suppression. https://bjsm.bmj.com/content/56/22/1292.long
2020 research on transgender women athletes by Emma Hilton and Tommy Lundberg concluded that: “The biological advantage, most notably in terms of muscle mass and strength, conferred by male puberty and thus enjoyed by most transgender women is only minimally reduced when testosterone is suppressed as per current sporting guidelines for transgender athletes.”
Scientific studies are a great resource in showing that males have a biological advantage over females in athletics, but we don’t need a study to tell us just how discouraging it is for female athletes to compete and lose to males. Since 2017, the Connecticut Interscholastic Athletic Conference (CIAC) has allowed males who identify as girls to compete in high school women’s sports, putting female athletes at an automatic disadvantage in their own sports.
Selina Soule is one such athlete. Selina is a dedicated sprinter. When she competed in high school, she devoted countless days, nights, and weekends to train in order to shave mere fractions of a second off her race times. She trains to win. But when she stepped up to the starting blocks at the beginning of a race, she knew that the odds were against her.
Since the CIAC’s policy change, male athletes who identity as female won race after race, collecting state titles along the way. In fact, since the CIAC changed its policy, two male athletes have taken 15 state titles that were previously held by nine different girls in 2016. Here are just a few of these championship titles:
- At the 2018 CIAC State Open Championship, two males took first and second place in the women’s varsity 100-meter dash.
- At the 2019 Indoor Track Championship, a male athlete won both the women’s 55-meter dash and the women’s 300-meter dash.
- At the 2019 CIAC Combined State Open Championship, a male athlete won the women’s 200-meter dash.
Beyond the state level, one of these male athletes went on to win the women’s 200-meter dash at the 2019 New England Interscholastic Track and Field Championships.
Here is a YouTube video of female athletes explaining why it is unfair to force them to compete against biological males:
https://www.youtube.com/watch?v=FN_kBcHXJ80
It shouldn’t be surprising that male athletes can outrun female athletes. What is surprising is that officials from the CIAC are allowing males to deprive so many girls of the championship titles they’ve trained so hard to achieve. They’re stripping girls of opportunities—not just on race day but for their future college scholarships, athletic careers, and more.
After months of training for the 55-meter dash, Selina placed just one spot away from qualifying for the final and a chance to compete for a spot in the New England regional championships, where many college scouts attend.
Two male athletes had taken first and second in that race. Had they not been permitted to do so, Selina likely would have competed at the regional championships in front of college scouts who might then have granted her a college scholarship. Instead, it is likely that sports scholarships intended for girls will instead now go to Trans boys.
6 Political Polls and Recent Action by Congress
On April 20, 2023, the US House of Representatives passed the “Protection of Women and Girls in Sports Act of 2023” to ban allowing males to compete in female sports and to define sex “based solely on a person’s reproductive biology and genetics at birth.” H.R. 734 (2023). The bill was passed on a party line vote of 219 to 203. However, the bill is now sitting in the Senate where no action has yet been taken.
https://www.congress.gov/bill/118th-congress/house-bill/734/all-actions?overview=closed&q=%7B%22roll-call-vote%22%3A%22all%22%7D
More Americans say Birth Sex should determine sports participation
In 2021, according to Gallup polls, 62% of Americans favored Birth Sex being used to determine sports participation. By June, 2023, the percentage that favored birth sex over gender identity rose to 69%. Only 26% are in favor of using gender identity. Large majorities of independents (67%) and Republicans (93%) remain opposed to giving transgender athletes a choice of competing on male or female teams. Even a majority of Democrats now support birth sex over gender identity. https://news.gallup.com/poll/507023/say-birth-gender-dictate-sports-participation.aspx
7 What does the future hold for Title IX and Girls Sports?
Currently both the change in state laws favoring biological sex and the change in federal laws favoring gender identity have been put on hold by the federal courts. This means that as of this moment, the original Title IX which uses biological sex is still in effect. Chris Reykdal is therefore wrong in claiming that Title IX requires using gender identity instead of biological sex.
Ideally, the three judge panel will make a decision soon. Since the new Title IX regulations are the exact opposite of the original Title IX – which was passed to protect Women’s rights to fair treatment, it is almost certain that the Biden administration new interpretation of Title IX will be struck down by the three judge panel – and eventually by the US Supreme Court.
But given overwhelming public opposition to the Biden Title IX rules, this public opposition will be a likely factor in the 2024 General Election which is now only 5 months away. Obviously if Trump and the Republicans win, a Supreme Court decision will not matter. In addition, if the Republicans hold the House, there is no chance for a Biden bill passing. Then the Supreme Court will determine the fate of Title IX. Given all of these facts, I am hopeful that the original intent of Title IX will prevail and likely prevail in 2024 or 2025.
How we can help protect girls in Washington state and prevent Trans boys from taking over girls sports in our state is by removing Chris Reykdal and in his place electing David Olson for State Superintendent.
As always, I look forward to your questions and comments.
Regards,
David Spring M. Ed.
David at Washington Parents Network dot com