The EconomistSeptember 5th 2020 United States 252 In Idaho, the American Civil Liberties
Union is battling a statewide law that bans
transgender women and girls from female
sports teams. They are representing Lind-
say Hecox, a transgender woman who was
denied a chance to join the women’s cross-
country team at Boise State University. Last
month, a federal judge issued a temporary
injunction on that law.
In Connecticut, three female high-
school athletes are challenging the policy
of the state’s interscholastic athletic con-
ference, which allows transgender girls to
compete against females. They argue that it
violates Title IX, a law passed to protect
equal educational opportunities for the
sexes, including in sports. In March the
civil-rights division of the Department of
Education said it did violate TitleIX.
These cases highlight the often irrecon-
cilable nature of transgender rights and
women’s rights. Those opposed to the in-
clusion of transgender women in women’s
sports argue that it is unfair to allow people
who have gone through puberty as men,
and who tend to be bigger, stronger and
faster, to compete against women.
Connecticut offers a vivid example of
this. Since 2017 two transgender athletes—
biological males who identify as women—
have between them won 15 state champion-
ships that were once held by nine different
girls. When they started racing as girls they
had not begun hormone treatment. But re-
search suggests that even those who have
gone through testosterone suppression re-
tain advantages of strength and muscle
mass. “It is so demoralising, running for
second place,” says 16-year-old Alanna
Smith, a highly competitive sprinter and
one of the girls challenging the state policy.
“I worry that women are going to become
spectators of their own sports.” Transgen-
der boys, meanwhile, often attest that it be-
comes easier to compete against males
once they have had “top surgery” (a mastec-
tomy) and taken testosterone.
Yet transgender activists argue that the
law should regard transgender men and
women as members of the gender with
which they identify. They say it is discrim-
inatory to exclude transgender women
from women’s sports as well as deeply
hurtful, especially for those at school.
“This debate frames these high-schoolers
as Olympians,” says A.T. Furuya, the youth
programmes manager at glsen, which
campaigns for the rights of lgbtschool
students. Furuya, a former high-school
sports coach and one of a handful of people
in America to have obtained “non-binary”
as their legally designated gender, adds
that “These are kids who just want to play.”American exceptionalism
A similar debate is raging across the rich
world. World Rugby, which currently fol-
lows the International Olympic Committee
guidelines that allow transgender athletes
to compete in women’s events if their tes-
tosterone levels are below a certain level, is
considering banning trans women from
the women’s game. That is partly because
of fears that transgender women players
could injure their teammates.
Strikingly absent from the discussion
in America are women’s groups standing
on the women’s side of the issue. Instead,
many long-established women’s groups
have aligned themselves with the trans-
gender movement. “Transgender girls are
girls and transgender women are women,”
reads a statement from several rights
groups in Connecticut, including the state
chapter of Planned Parenthood. “They are
not and should not be referred to as boys ormen, biological or otherwise”.
Doriane Coleman, a law professor at
Duke University, observes that it is “ex-
tremely difficult” to get the support of any
civil-rights group for an agenda that does
not include trans women in its definition
of women. That is why the female athletes
in both Connecticut and Idaho are repre-
sented by the same conservative Christian
organisation, the Alliance Defending Free-
dom (adf). (Ms Coleman points out that
the adf also has first-class lawyers.) In
Britain, by contrast, the battle to preserve
women’s spaces, from lavatories to pri-
sons, is largely being fought by feminists.
The fact that progressives appear to
have largely ceded this issue to conserva-
tives reflects the way such issues have be-
come polarised in America. In many coun-
tries, those who suggest that the law
should not regard trans women as women
in all respects are denounced as trans-
phobic; in America, such attacks are partic-
ularly aggressive. Though polls suggest
that a majority of Americans believe that
trans women should not play in women’s
sports teams, this is a view that is rarely
heard publicly.
“Our discussion about this topic is in-
sane—you can’t talk about it at all,” says
Natasha Chart, a board member of Wom-
en’s Liberation Front, which describes it-
self as a “radical feminist organisation”.
“You face so much social opprobrium for
speaking out that people don’t want to
touch it.”
How will the courts adjudicate? A land-
mark ruling on lgbtrights by the Supreme
Court may offer a clue. In June, America’s
highest court ruled in Bostock v Clayton
Countythat gay, lesbian and transgender
people were protected under Title VII of the
Civil Rights Act, which bars discrimination
in employment because of sex. That has
raised the question of whether this reason-
ing could also be applied to Title IX.
Several lower courts have suggested it
could. In August the judge who issued a
temporary injunction on Idaho’s ban on
trans athletes in women’s teams, cited Bos-
tock. The same month, a federal appeals
court ruled that school policies that forbid
transgender students to use the lavatory of
their gender identity violate the law. That
judge said Bostock had guided his evalua-
tion of claims under Title IX, because Con-
gress had intended it and Title VII to be in-
terpreted similarly.
Yet in Bostock, the Supreme Court ex-
plicitly said it was ruling only on discrimi-
nation in employment; it was not attempt-
ing to address “bathrooms, locker rooms,
or anything else of the kind”. This qualifi-
cation suggested that the justices expect to
consider such questions in the future.
However the courts in Connecticut and
Idaho rule, the issue seems likely to end up
Fair enough? at the Supreme Court. 7