Fairness in Women's Sports Act

On March 30, 2020 the Governor of Idaho signed into Law House Bill No. 500 entitled “Fairness in Women’s Sports Act.” The bill amended Title 33 of the Idaho Code with the addition of a new chapter 62 to be known and cited as the “Fairness in Women’s Sports Act." This bill established that only female students who were biologically female at birth can participate in female sports teams and athletics. It states that public schools, any school that is a member of the Idaho High School Activities Association, and any higher education institution that is a member of the NCAA, NAIA, or NJCAA  must ensure that athletic teams are designated based on biological sex, rather than gender identity, and prohibits transgender females from participating in female sports teams.[9] The bill made Idaho the first state to outright ban transgender participation in athletics.[10]

The bill was introduced in response to growing concerns that allowing transgender females to compete in women's sports would create an unfair advantage due to their physiological differences. Males, as the bill outlines, having naturally higher levels of testosterone, higher red blood cell counts, high hemoglobin, larger hearts, greater lung volume per body mass, and other biologically advantageous traits, are able to generate greater power and speed during physical activity than their female counterparts.[11] Citing Neil Burton’s article “The Battle of the Sexes” published in 2012, Gina Kolata's article “Men, Women, and Speed. 2 Words: Got Testosterone?” published in 2008, and the work of Doriance Lambelet Coleman among others, the bill provides extensive scientific evidence to support its claim of an inherent male advantage over females in athletic pursuits.[9]

The legal footing of the bill is found in the U.S. Supreme court ruling in United States v. Virginia (1996) which stated that “sex classifications may be used to compensate women for particular economic disabilities suffered, promote equal employment opportunity, [and] to advance full development of the talent and capacity of our Nation’s people.”[12] Emphasizing the final clause, the Idaho legislature argues that sex classifications are necessary for the “full development of the talent and capacity of our Nation's people” in the context of sports and athletics. The bill also cites two cases, Kleczek v. Rhode Island Interscholastic League, Inc. and Petrie v. Illinois High School Association, wherein the courts have recognized the existence of inherent physiological differences between males and females and the unfair advantage those differences give males over females in athletics.[9] Thus, it is only through teams and sports designated based on biological sex that the state of Idaho could fully realize gender equality in sports and athletics.

House Bill No. 500 specifies that a “student may establish sex by presenting a signed physician’s statement that shall indicate the student’s sex based solely on: the student’s internal and external reproductive anatomy; the student's normal endogenously produced levels of testosterone; and an analysis of the student’s genetic makeup.”[9] The bill makes clear that even those using puberty blockers and cross-sex hormones if born biologically males continue to have an absolute advantage over female athletes and should be excluded from female-designated athletics.[13]

Supporters of the bill argue that it is necessary to protect the integrity of women's sports and ensure a level playing field for female athletes. Opponents of the bill argue that it is discriminatory against transgender individuals and violates their rights to equal treatment under the law as guaranteed in the Equal Protection Clause of the U.S. Constitution.[10] The Bill is currently being challenged in the U.S. Court of Appeals for the 9th Circuit as an Equal Protection Clause violation in the case Hecox v. Little. The plaintiffs, Lindsay Hecox, and her three friends, initially lost in the District Court of Idaho. However, the 9th Circuit Court of Appeals has yet to deliver a ruling.[14]

Florida Governor Ron DeSantis signed the “Fairness In Women’s Sports Act” into law on July 1, 2021.[15] This legislation is intended to maintain fairness and opportunities for female student-athletes. Similar to the Idaho bill, the Florida Act relies on biological sex at the time of birth as declared on the student’s birth certificate but does not require anatomy to be certified by a physician.[16] The bill requires all post-primary public institutions to designate sex-specific sports and teams. The bill designates three categories of teams and sports. The first is male-sex only but may allow athletes of the female sex. The second is female-sex only and this category cannot allow students of the male sex. The third category is co-ed and accepts students of both male and female sex.

Unlike the Idaho bill, the Florida legislation does not discuss biological differences between the male and female sex, and private schools are largely exempt from the sex-designation requirement. This bill is also designed to protect public educational institutions from investigations, lawsuits, or complaints on the basis of female-only sports and teams. Furthermore, it allows for any students or organizations who are harmed by institutions that do not maintain female-only teams to take action for injunctive relief to file private claims within two years of the harm occurring. Harm can be defined as the deprivation of athletic opportunity, or subjection to public, athletic, or educational retaliation for reporting violations of the law. If their claims are determined to be factual they can be rewarded monetary restitution for harms that may include, physical, emotional, and psychological damage as well as attorney fees and are eligible for “any other appropriate relief”[17] as the civil courts see fit.

Arkansas Senate Bill 354 To Create The Fairness in Women’s Sports Act was signed into law by the Governor on March 29, 2021. SB354, which draws heavily from the Idaho House Bill No. 500, amends the Arkansas Code Title 6, Chapter 1, Subchapter 1 to create a section entitled “Fairness in Women’s Sports Act.”[18] The bill, like that of Idaho’s, established that only female students may participate in female sports teams and athletics, and banned the participation of transgender students in any sport or athletic pursuit designated as female.

Subsequently, on April 29, 2021 the governor signed into law Senate Bill 450 To Create The Gender Integrity Reinforcement Legislation For Sports (Girls) Act; And To Create A Legal Cause Of Action For A Violation Of The Gender Integrity Reinforcement Legislation For Sports (Girls) Act.[19] This bill included some of the more technical language that was originally left out of SB 354 regarding the determination of gender and the defining of a “school” or “covered entity.” Pulling again from Idaho House Bill, Arkansas SB 450 defines sex as a “person’s immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth.”[19] Senate Bill 450 also makes clear that any elementary school, high school, secondary school, or postsecondary school that is located in Arkansas and whose students or teams compete in interscholastic, intercollegiate, intramural, or club athletic teams or sports against a public school or high education institution as outlined in SB 354, must as well adhere to the bill. Thus, private schools and educational institutions now also fall under the jurisdiction of the bill. The Bill also provides an avenue for legal action to be taken against those schools and “covered entities” who are found in violation of Senate Bill 354 The Fairness in Women’s Sports Act.[18]

Not all legislation barring the participation of transgender students in sports and athletics is entitled “The Fairness in Women’s Sports Act.” Similar legislation also exists under names such as “Save Women’s Sports Act,” “Fairness Act,” and others. As it currently stands, in addition to Idaho, Florida, and Arkansas, legislation of this nature has passed in Mississippi [see Senate Bill 2536],[20] Montana [see House Bill 112],[21] Ohio [see Senate Bill 187],[22] Tennessee [see House Bill No. 3 Senate Bill 228], and Texas [see House Bill No. 25].[23] Legislation of this nature is also pending in nearly 23 other states across the U.S.[24]

These laws have all been subject to intense review and criticism. In response to Governor DeSantis signing the Florida bill into law, the Human Rights Campaign (HRC) filed a lawsuit on the basis of sex discrimination. The HRC claims this law is in violation of Title IX because public schools receive federal funding. The HRC also asserts this law is in violation of the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.[25]

The National Collegiate Athletic Association (NCAA) also issued a statement after the Florida act became law saying they would only hold events in states “free of discrimination”.[26] Currently, the NCAA requires all transgender athletes to provide documentation of testosterone levels, as determined by their specific sport, four weeks before they are eligible to qualify for championships.[27]

As a broad response to various “Fairness In Women’s Sports” acts in different states, President Joe Biden issued an executive order to combat discrimination on the basis of sexual orientation and gender identity. The order reads, “Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.”[28]

The Athlete Ally and Women’s Sports Foundation compiled a list of around 200 female athletes as signatories for a Lambda Legal brief urging the Ninth Circuit of Appeals Court to affirm the injunction against the Idaho bill. Famous athletes Billie Jean King, Megan Rapinoe, and Candace Parker were among the signatories.[29]

Elizabeth Sharrow, Associate Professor of Public Policy and History at the University of Massachusetts Amherst, examined how the politicization of transgender athletes upholds the sex binary while reinforcing male dominance and the subordination of women. In her article "Sports, Transgender Rights and the Bodily Politics of Cisgender Supremacy" she asserts these laws protect status quo gender norms in favor of cisgender people and the “androcentric world”.[30] These laws further harm all athletes when they establish the need to investigate genitalia and ignore the possibility these investigations could cause sexual trauma. Ultimately, Sharrow argues that these laws “advance a logic of cisgender supremacy”.

In their paper “Don’t Read the Comments: Examining Social Media Discourse on Trans Athletes” Zein Murib asserts that this recent movement against transgender rights not only in sports but in health care, schools, and public spaces is reflection of the “threat” perceived by evangelical christian and far-right political actors against the established heteronormative, nuclear family, prototypical citizen tradition in american society.[31] Having lost the marriage batter in Obergefell v. Hodges, the attention has now turned to transgender rights. Thus, the goals of these bill is not truly about fairness and equality but about reestablishing binary sex as natural or as Elizabeth Sharrow calls it “cisgender supremacy.”[31]

Secondly, Murib seeks to challenge beliefs of testosterone as the defining difference between male and female athletics by instead highlighting the societal norms and gender stereotypes that dominate the formation of male and female athletes. Referring to a study done by Michael Messner’s on Little League Boys teams, Murib highlights that conceptions of male as innate competitive, aggressive, and less likely to cry are scripted into boys at a very young age by coaches and parents alike.[31] Boys are consistently raised in an environment where displays of brute aggression and competitiveness, credited to their higher testosterone levels, are acceptable because they are boys. Therefore, weighting differences between male and female athletics entirely on their hormonal differences fails to recognize the gender roles and stereotypes that underpinned the formation of athletes from a young age.[31] Maybe the issue is not whether female athletics are disadvantaged compared to male athletics due to biological differences, but the ways in which society instills passivity, submission, and softness in women from an incredibly young age.

Joshua D. Safer, MD, the Executive Director of the Mount Sinai Center for Transgender Medicine and Surgery asserts that transgender people are at great risk for not exercising due to a fear of discrimination or being “outed”.[32] Given the mental and physical benefits of exercise Safer believes that encouraging transgender people to participate in athletics should be an important health priority. Safer also offered expert testimony in Hecox v Little, where he attested to consensus in the medical community which posits the difference in testosterone between elite male and female athletes is what drives the differences in performance. He also asserts that many cisgender women naturally have testosterone outside what is considered normal for cisgender women. Additionally, Safer asserts that the Idaho bill unnecessarily excludes transgender girls and women who began hormone therapy before puberty. These girls have the same levels of hormones as cis girls when they go through puberty and develop “typically female”[33] muscle and bone structure. He further maintains that after a transgender woman lowers her level of testosterone there is no reason why her physical characteristics should be treated differently than those of cisgender women as it relates to athletic performance.

An article published in Sports Medicine by Bethany Alice Jones, Jon Arcelus, Walter Pierre Bouman, and Emma Haycraft claims to be the first systematic review of literature as it concerns the participation of transgender athletes and subsequent policies. They assert there is no research that proves transgender female athletes have any advantage during any stage of their transition. They argue that the existing research on transgender athletes is mainly qualitative and thus does not lend itself to generalization.[34]