Outgoing U.S. Representative, and former 2020 Democratic presidential candidate, Tulsi Gabbard (D-HI), has joined forces with Rep. Markwayne Mullin (R-Okla.) to introduce legislation guaranteeing equality for female athletes.
For purposes of athletics, the “Protect Women’s Sports Act” would define “sex” as biological sex at birth—not gender identity.
Title IX and Women’s Sports
The legislation would amend Title IX, the landmark 1972 legislation that prohibits schools that receive federal money from discriminating “on the basis of sex.” Title IX applies to all aspects of the educational experience, including athletics. Regulations implementing Title IX require high schools, colleges, and universities that receive any federal money to “provide equal athletic opportunity for members of both sexes” and allow for separate men’s and women’s teams to help achieve that objective.
This is common sense. Physiologically, the average male is stronger, bigger, and faster than the average female. No less an authority than tennis legend Martina Navratilova has stated that, because of these differences, “sex segregation is the only way to achieve equality for girls and women in competitive athletics.”
According to Gabbard, Title IX’s was based on a binary approach to athletics that “led to a generational shift that impacted countless women, creating life-changing opportunities for girls and women that never existed before.”
She’s right. According to a 2016 article by Beth A. Brooke-Marciniak and Donna de Varona in the World Economic Forum, since 1972 there has been “a 545% increase in the percentage of women playing college sports and a 990% increase in the percentages of women playing high school sport.”
A Growing Trend: Transgender Athletes
Lately, however, there has been a growing trend of transgender athletes, who were born male, seeking to compete against females or on female teams.
In Connecticut, to two transgender sprinters, Terry Miller and Andraya Yearwood, have won at least 15 state titles, prompting biological female runners to file suit. Connecticut is one of at least 19 states that allow athletes to compete according to their gender identity without restriction. Gabbard’s bill would outlaw the practice.
Current Interpretations of Federal Law
Traditionally, courts have interpreted federal laws against sex-discrimination as prohibiting policies that favor one sex over the other, not as prohibiting all policies that separate or distinguish between males and females on the basis of biological differences.
But in Bostock v. Clayton Cty., decided in June, the U.S. Supreme Court ruled that prohibitions on sex discrimination in employment includes discrimination on the basis of gender identity because a transgender person’s status can only be defined in relation to his or her biological sex at birth.
At the time, some commentators worried that courts would apply the reasoning in Bostock to Title IX, effectively elimianting single sex sports. Just two months later, federal District Judge David Nye relied on Bostock in issuing an injunction blocking an Idaho law prohibiting anyone born male from playing on women’s sports teams. That case is currently on appeal to the U.S. Court of Appeals for the 9th Circuit.
Pushback From Progressives
Perhaps not surprisingly, Gabbard, thus far, has received little support from her Democratic colleagues. Worse, she has been attacked on social media as “discriminatory” and “transphobic.”
In a video on Twitter, Gabbard defended her bill:
According to the New York Post, Gabbard also said, “it’s mind-boggling how quickly people attack those whose positions are based on science and common sense.”
Gabbard continued,
The real reason why so many people are upset by my Title IX legislation is that it recognizes the biological distinction between men and women.
It’s the height of hypocrisy for someone who claims to be an advocate for women’s rights to also simultaneously to deny the biological existence of women. How can someone claim to be a champion of women while denying our very existence?
Although her colleagues on the left may not agree, polls show that voters, by wide margins seem to support Gabbard’s position. A poll by Scott Rasmussen conducted in June found that 60 percent of respondents do not believe biological males should be allowed to participate in women’s athletic competitions.