One of the executive orders signed by President Biden on his first day in office effectively changed the face of girl’s athletics in the United States. It makes the appealing claim that:

Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.

The order goes on to state that:

In Bostock v. Clayton County, the Supreme Court held that Title VII’s prohibition on discrimination “because of . . . sex” covers discrimination on the basis of gender identity and sexual orientation. Under Bostock’s reasoning, laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972…prohibit discrimination on the basis of gender identity or sexual orientation.

In other words, Title IX – the legal bedrock upon which many girls’ athletics programs are founded – has been extended to transgender athletes. Thus, just as you should be able to use the locker room that corresponds to the gender as which you identify, so should you be able to compete in sports against people of the gender as which you identify.

That sounds very nice in today’s climate of inclusivity, but it turns into a very real problem when one realizes that gender identity is one thing, but biology is another, and allowing people born with XY chromosomes to compete against those born with XX chromosomes puts the latter at an enormous disadvantage.

Policies allowing transgender athletes to compete in girls’ sports were already in place prior to the Biden order. One example is the Connecticut Interscholastic Athletic Conference (CIAC), which was sued in 2020 by three biologically female track-and-field athletes. The plaintiffs maintained that male puberty wreaks changes on XY chromosome bodies that make for physiological athletic advantages that cannot be ignored. Indeed, the balance is so skewed in favor of those born with XY chromosomes that, according to the complaint filed in court, each year, thousands of men—and dozens or hundreds of high school boys under the age of 18—achieve times (or heights or distances) in track events better than the world’s single best elite woman competitor that year.

Trans rights groups and the ACLU may argue otherwise, but, while it would be nice to live in a world in which gender identity choice literally levels athletic playing fields, that does not seem to be what it does in reality.

The redress sought by the three plaintiffs in the action is an admission that the defendants violated Title IX, an injunction against allowing people with XY chromosomes from competing in designated girls’ events, and an injunction to correct records of interscholastic competitions, effectively disqualifying the transgender athletes who participated in girls’ sports under the CIAC.

The case has had an interesting history. A month after the suit was filed, the Department of Justice filed a statement of interest because it “has a significant interest in the proper interpretation of Title IX.” That pre-Bostock interpretation was very much in the plaintiffs’ favor.

Next, Judge Robert Chatigny of the U.S. District Court for Connecticut brought attorneys from both sides into a telephone conference and took issue with an important aspect of the original complaint:

I don't think we should be referring to the proposed intervenors as “male athletes.” I understand that you prefer to use those words, but they're very provocative, and I think needlessly so. I don't think that you surrender any legitimate interest or position if you refer to them as transgender females. That is what the case is about. This isn't a case involving males who have decided that they want to run in girls’ events. This is a case about girls who say that transgender girls should not be allowed to run in girls’ events. So going forward, we will not refer to the proposed intervenors as “males”; understood?

Plaintiff’s counsel took issue with the directive and filed a motion to disqualify that argued that the court showed bias by requiring the change in nomenclature. That brought the case to the Court of Appeals for the Second Circuit and a petition for a writ of mandamus.

Meanwhile, the Office for Civil Rights of the Department of Education conducted its own investigation into the matter and determined that the CIAC had, indeed, engaged in discriminatory actions toward female athletes. The OCR, therefore, sought to resolve the matter by submitting an agreement to the defendants in the court action, which led to an impasse, which led to a notice of impending action on the part of the DOE. That was revised in small measure in August as a result of the Supreme Court’s decision in Bostock, but its gist remained the same.

There the matter rested until the President signed his executive order. That was followed by notification from the DOE that it was withdrawing its previous letter of impending action, stating that:

the Department has determined that the Revised Letter was issued without the review required for agency guidance documents…In addition, pursuant to Executive Order 13988 on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, the Revised Letter’s statement of OCR’s interpretation of Title IX and its implementing regulations should not be relied upon in this or any other matter.

The court case remains pending, although how it will fare in the wake of such developments as Bostock, the Biden executive order and the Equality Act is a very good question.

Definitive responses are, however, forthcoming from four states with Republican majorities in their legislatures: Mississippi, North Dakota, Tennessee and Utah. All of them are passing legislation to prohibit people with XY chromosomes from participating in girls’ athletics. Trans rights groups will doubtlessly contest these laws, but what might be a step forward for the transgender population could in reality be a giant step backward for women in sport.