The Civil Rights Act of 1964 almost did not outlaw discrimination on the basis of sex. It was added to the other prohibited types of discrimination (race, color, religion and national origin) almost as an afterthought, and some even believe it was added in an attempt to kill the bill. Just as the 19th Amendment was the great achievement of the first wave of feminism, so this act, in addition to other legislation passed around the same time such as the Equal Pay Act of 1963, was the great achievement of the second wave of feminism. During the 1960s, sex discrimination became officially illegal in the United States.
Title IX was an update to the Civil Rights Act, though formally passed as part of the 1972 amendments to the Higher Education Act’s reauthorization. The Civil Rights Act had not explicitly mentioned prohibiting sex discrimination in education, and Title IX was meant to close that loophole. While Title IX does not even mention sports per se, its very name is synonymous with opening the doors to school sports participation for women, especially at the high school and collegiate level, because it mandated equal opportunities for men and women in all educational programs.
I remember those bad old days before Title IX, because I was still in high school when it became law. There were no real girls’ sports teams or facilities for such teams at my high school until Title IX came along. As I recall, my high school started a girls’ basketball team after Title IX passed. Girls were even allowed — finally — to take shop class.
Since then, women’s sports have come into their own, especially at the collegiate level. Today, sports championships and scholarships are almost as widely available to women as they are to men. Such opportunities also have broader salutary effects on women’s participation in society: For example, research has shown that one of the most reliable predictors of whether a woman runs for office is if she participated in a team sport when younger. That sports experience helps her to think of herself as a competitor, as a leader and as a winner — experiences which may still be in somewhat shorter supply for young women in our society than for young men.
Title IX has been a great champion for American women, until recently when the Obama and Biden administrations changed the definition of “sex” in Title IX to include gender identity. The problem with this approach was brought most vividly to the American consciousness by Lia Thomas, who, though having undergone full male puberty and not undergoing sex reassignment surgery, was permitted to compete as a woman in NCAA swimming events in 2022 on the basis of professed gender identity, capturing titles and setting records. Thomas was also permitted to change in the female locker room.
Fully half the states in the union now require by law or by regulation that school athletes participate in sports according to their sex, not their gender. But there has been no one to champion the rights of female student athletes in the other half of the states. Women are finally fighting back in the most time-honored American fashion, via federal lawsuit.
Filed March 14 in the U.S. District Court seated in Atlanta, 15 female collegiate swimmers and track/volleyball athletes are suing the NCAA (and Georgia Tech, where the 2022 NCAA Swimming Championships were held) for breach of federal law, specifically Title IX, for allowing biological males to compete against them in NCAA events. But wait — didn’t the Biden administration redefine “sex” under Title IX as including gender identity?
Well, yes and no. Biden’s Department of Education has issued “guidance” to that effect, but an amendment to the regulations that actually implement Title IX has been in process for almost two years now. As with all new regulations, by law, the administration had to seek public input before changing the rules. The Department of Education was flooded with almost a quarter of a million public comments in 2022, and a perusal of those made public show that commenters overwhelmingly reject transgender women’s participation in women’s sports, accurately reflecting current public opinion surveys on the question. Rather than drop its proposals because the public is very much opposed to them, the administration has been stalling, with the new rules expected this very month.
In a situation with this much flux and controversy, the NCAA lawsuit is timed propitiously. With state-level law split down the middle on this issue, and with world sporting bodies such as World Athletics, World Swimming (FINA), Rugby Football League, the International Cycling Union, the World Boxing Council and the International Olympic Committee, among others, all banning transgender women who have gone through male puberty from participating in women’s sports events, it’s not the place of the executive branch of the United States to make this decision for the nation.
It should rightly be Congress’ place, but given the current makeup of Congress, that body is not capable of deciding the issue, either. The female athletes behind this lawsuit realize that only the judicial branch is currently capable of providing the needed relief. So it’s off to federal court, invoking Title IX, and invoking the definition of “sex” in use at the time Title IX was passed in 1972, which is a nod to the current Supreme Court’s preference for such a textualist approach.
Starting from this definitional premise, it is child’s play to prove that the NCAA has grossly violated Title IX. After all, as the complaint points out, it’s evident that “Congress recognized when enacting Title IX that men and women are not interchangeable,” or it would have been completely unnecessary to pass Title IX in the first place:
“(T)he NCAA’s Transgender Eligibility Policies breach Title IX by permitting men to compete against women in women’s competitions where a man may rely upon inherent aspects of their maleness, including physical and athletic advantages, to take women’s places, titles and public recognition, which Title IX requires to be protected for women and made equally available to them.”
The lawsuit goes on to note that the NCAA has reduced the concept of “women” to a testosterone level, because a lowering of testosterone is the only requirement for transgender women to compete in NCAA women’s sports. Of course, this overlooks the undeniable advantage the transition that is male puberty affords athletes, amply documented in the lawsuit’s lengthy appendix of reference material. In addition, the lawsuit notes, “every single testosterone threshold applied by the NCAA (for transgender women to compete) is higher than the highest testosterone level women can produce without doping.”
For 19 of the 25 NCAA sports, the acceptable testosterone level for transgender women is “five times (5x) greater than the highest level of testosterone any woman produces without doping.”
All in all, then, the lawsuit argues that the NCAA has turned Title IX on its head, and it’s hard to disagree. Title IX as understood by the Biden administration is no longer a protection to women participating in school sports, but a state-sanctioned means of stripping women of the opportunities that Title IX had promised to offer them. Instead of a guard dog, Title IX has been transformed into a wolf.
As the lawsuit puts it, the NCAA is forcing “women to cede opportunities and equal treatment to those whom the NCAA defines as ‘transwomen’ but which faithful adherence to the plain language of Title IX requires be defined as ‘males’ for purposes of Title IX’s application to college sports.”
Astonishingly, this very month, in written response to questioning by Utah Sen. Mike Lee, a member of the Senate Judiciary Committee, NCAA President Charlie Baker said, “The NCAA has never studied the harm of its policy allowing males identifying as women to participate and compete on women’s teams.” That’s a damning admission wholly at odds with Title IX: If true, Baker should be fired for malfeasance.
The lawsuit notably seeks to change NCAA rules to safeguard the integrity and fairness of women’s sports, as other world athletic bodies and half the U.S. states have already done, and to correct the record of wins, titles and records for NCAA events where transgender women were allowed to compete against female athletes in women’s competitions.
I hope the case winds up at the Supreme Court, because, frankly, that’s the body that created this definitional mess in the first place. I am glad these athletes are standing up for women and for fairness, and I wish them godspeed.
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.