On April 15 the American Civil Liberties Union filed a legal challenge to Idaho’s House Bill 500, named the Fairness in Women’s Sports Act. This bill is the first of its kind, which seeks to maintain the sex separation of sport. Criticized as the discriminatory, hurtful and anti-transgender, the ACLU suggested that this bill "bans trans girls from sports,” by “addressing a problem that does not exist.” Idaho ACLU Legal Director Ritchie Eppink noted that “we have been fighting this hateful, unconstitutional legislation since it was introduced.” They have been fighting it, but is it hateful, discriminatory and anti-trans? No. Does it address a real problem? Yes.

Callie Burt

Callie Burt

Sports are separated by sex because of male-female biological differences of which we are all aware. Starting before puberty and accelerating thereafter, males are stronger, faster and bigger than females, on average, and it is not close. Furthermore, this sex-difference isn’t about socialization or effort; it is about biology. Male physiology (muscle mass, greater hemoglobin, bone strength, hip shape, lower fat composition) is exceptionally advantageous for sport. For example, as Coleman and Shreve demonstrated, 400-meter Olympic champion Allyson Felix has her lifetime best time (49.26 seconds) beaten by more than 15,000 boys and men every year. The most lauded women’s sports team of this decade, the U.S. Women’s National Soccer Team, was defeated by the FC Dallas boys age 15 and under team 5-2 before going on to win the Women’s World Cup later that year. If sports were not sex separated, there would be almost no college athletes, no professional athletes and zero Olympic athletes for the vast majority of sports (e.g., track, swimming, tennis, basketball, soccer, cycling, hockey and so on). For female athletes to gain benefits from competitive sport, including the possibility of being on teams and winning occasionally, sports must be sex separated. This is not debatable.

Enter gender. In recent years, we have seen various countries and U.S jurisdictions pass or tacitly allow gender self-identification as a replacement for sex in a variety of arenas, including sports. Many of these bills and efforts no doubt have good intentions, but they are misguided. Gender (identity) is not a synonym for sex. People who are transgender experience a sex-gender mismatch, but they still have a sex, and it is on that basis that they are transgender. People should not be discriminated against on the basis of gender and transgender people deserve full human rights. There is, however no human right to opposite-sex provisions. In other words, maintaining sex-based rights, including sex separated sports, is not discriminatory against people of the opposite sex (including transgender people).

To be clear, being transgender, non-binary or agender should not be a basis for discriminatory treatment on the basis of gender, but sex-based rights are based on sex, not gender. Females are not disadvantaged versus males in sport because of their gender — being feminine (some aren’t) — or because of their gender identity — they feel female (some don’t, they just are), but because of their sex. Allowing born males (trans girls or trans women) into girls’ and women’s sports makes no sense because gender is irrelevant to sport.

Finally, the ACLU and others have framed HB 500 as a violation of civil liberties, but this too is misguided as we routinely verify individual attributes for a variety of purposes. In the same way that it is not a violation of civil liberties to check people’s eligibility for the Paralympic Games and verify age for age-group categories for buying alcohol, it is not a violation of civil liberties to verify sex for the purposes of maintaining the integrity of female sports. And this does not require invasive genital examinations; in the exceptionally rare case this is in question, a cheek swab or bit of spittle will be sufficient for a genetic test.

Thus, although cast as hateful, Idaho’s HB 500 is only hateful if you think the sex-separation of sport is hateful (and, if so, then why aren’t you calling for unisex sports?). Furthermore, the ACLU claims HB 500 bans trans girls from sport; that’s false. It bans born males from competitive female athletics, which is, in my view, justifiable policy based on the latest scientific evidence about male advantages in sport. Trans girls are still free to participate in unisex and friendly competitions.

I support Idaho HB 500. Maybe you do not, but at the least, I urge you to consider on what basis it is hateful to eliminate females’ sex-separated sports because trans people experience hardships. This is both unjustifiable and unnecessary. We can create third gender-neutral (unisex) competitions. Moreover, many non-elite unisex competitions exist, along with many other fulfilling activities for people. There is no right to compete in categories that one does not fit based on self-identification. Females’ sex-based rights matter, and for sports at least, gender is irrelevant.