Many female athletes are breathing a sigh of relief over recent events. First, the independent international Court of Arbitration for Sport ruled that Lia Thomas, the transgender swimmer, is not eligible to compete in women’s World Aquatics events, and thus would also not be eligible to compete in the Paris Olympics in women’s swimming events.
Although last year World Aquatics created an “open” category for transgender competitors so that they could continue to compete, Thomas had sued to participate in women’s events instead.
But even that victory is small potatoes compared to the latest chapters in the saga of Title IX.
As I have previously written, Title IX refers to a 1972 extension of the Civil Rights Act of 1964, and prohibits sex discrimination in education. Arguably one of the most consequential effects of Title IX was to ensure that female students have an equal opportunity to participate in sports. While it’s not a perfect instrument — the General Accounting Office recently completed an investigation into its enforcement shortcomings — Title IX was truly revolutionary for women’s sports, especially at the high school and collegiate levels.
However, beginning tentatively during the Obama administration, and then much more assertively during the Biden administration, the federal government now argues, citing the Supreme Court’s Bostock decision, that the definition of sex not only includes physical sex, but also gender identity. Furthermore, when gender identity discrimination is alleged, that then trumps arguments based on physical sex.
So, for example, students who have gone through male puberty and now assert they are women would, under the Biden administration’s reinterpretation, be eligible to compete in women’s sports in high school and college. And this would be judged a more important matter than the right of female athletes to fair competition, and the right of female athletes not to share restrooms and locker rooms with biological males.
Such a reinterpretation is not only highly controversial, but it also is in flagrant discord with public opinion. Polling in 2024 suggests a full two-thirds of Americans oppose boys competing in girls sports, and 69% of Americans oppose biological men competing in women’s sports. This is an issue that unites opposition across the political spectrum, and where the percent opposing rises with each passing year. One of the highest values in American culture is fairness, and males competing in women’s sports appears to the American mind as patently unfair.
Where we last left the Title IX imbroglio, fully half of U.S. states now require by law or by regulation that school athletes participate in sports according to their sex, not their gender identity. Female athletes in states without such laws have sued the NCAA in federal court over its failure to implement Title IX as originally interpreted by Congress. In addition, in April, the National Association of Intercollegiate Athletics, the governing body of small collegiate athletics programs, banned transgender women from participating in women’s events. Female athletes have stopped acquiescing and have begun to boycott school sporting events where they are expected to play against biological males. The U.S. House of Representatives passed a bill banning trans participation in women’s sports, though it was dead on arrival in the Democrat-controlled Senate.
There’s a real rebellion afoot, and many of our governing elites are seriously out of touch with the values of the electorate on this issue.
This week, however, the rebellion has spread in a new and significant way. District courts in a number of regions are declaring that the Biden administration’s reinterpretation of Title IX is unlawful. On Monday, a district court judge whose jurisdiction covers Kentucky, Indiana, Ohio, Tennessee, Virginia and West Virginia struck down the reinterpretation. Another district court judge struck it down in Idaho, Louisiana, Mississippi and Montana. Another district court struck it down in Texas. There are five more suits pending in various district courts, involving at least another 11 states.
Then on Wednesday, the Utah House of Representatives voted in favor of two resolutions that authorize educators to enforce state law over the new Title IX regulations, claiming “an overreach of federal administrative authority that violates Utah’s rights and interests to provide for the health, safety, welfare of, and to promote the prosperity of, Utah residents.” Utah has joined three other states and four private entities in a lawsuit that challenges the new Title IX rule, which is scheduled to take effect Aug. 1.
It’s instructive to listen to the judge’s explanation in the ruling applicable to Idaho, Louisiana, Virginia and West Virginia. What the judge in that ruling wrote is summarized here:
U.S. District Judge Terry A. Doughty, chief of the Western District of Louisiana ... wrote that protecting “biological males” as if they are female subverts the purpose of Title IX. He said the regulation represented an “abuse of power” on the part of the Biden administration.
“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,” Doughty wrote. “(B)y allowing biological men who identify as a female into locker rooms, showers, and bathrooms, biological females risk invasion of privacy, embarrassment, and sexual assault.”
There is a famous movie about the Arnhem Bridge in the Netherlands, the focus of a World War II battle. The movie was called “A Bridge Too Far” because the defenders were stretched by their clueless leaders beyond their capabilities, resulting in failure and a tremendous loss of life. Biological males competing in women’s sports is that “bridge too far” for Americans in the transgender debate, and will similarly result in failure and defeat by leaders wholly out of touch with the feelings of the electorate.
Of course, at some point this whole mess will be dropped at the feet of the Supreme Court, whose Bostock decision was responsible for its creation in the first place. Faced with rebellion by federal district courts in many jurisdictions, the day of reckoning is at hand for SCOTUS.
And as far as female athletes are concerned, that day cannot come fast enough.
Valerie M. Hudson is a university distinguished professor at the Bush School of Government and Public Service at Texas A&M University and a Deseret News contributor. Her views are her own.