PUBLISHED:March 18, 2020

Coleman: Arizona's legislation to support a ban of transgender women and girls from competition is legally and scientifically flawed

Originally published in the Arizona Republic on March 17  Doriane Coleman

It's not wrong to restrict transgender athletes. But base it on evidence, ethics

By Doriane Lambelet Coleman and Nancy Hogshead-Makar

Arizona is one of several states citing our work in legislation that would bar transgender women and girls from competing in school sport set aside for females. 

This legislation generally permits no exceptions or accommodations, even for students who haven’t experienced male puberty. And it requires anyone challenged about their sex to submit a doctor’s note providing information about their reproductive anatomy, testosterone levels and chromosomes.  

It’s important to protect girls’ and women’s sport, and this does require paying attention to sex. But these provisions are legally and scientifically flawed and should be rejected.

Proponents of the legislation are right that Title IX requires separate sex sport when this is necessary to ensure that competitive opportunities for females are equal to those available to males. Girls’ and women’s sport exists specifically for this purpose, and the way it accomplishes the goal is by excluding males from competition.

Proponents are right that from the onset of male puberty, because of the constructive effects of testosterone on the male body, it’s not possible to ensure that females have equal opportunities without distinguishing the sexes. They’re also right that “sex” in the law of sport means biological sex.

The handful of lower federal court decisions holding that schools must allow trans girls to use girls’ bathrooms don’t apply to competitive sport, which is specially regulated by Title IX.

But the legislation’s proponents are wrong to seek to bar all trans girls and women from all girls’ and women’s sport, and to require students whose sex is challenged to prove their eligibility in such intrusive detail.

Sex discrimination is only constitutional when it’s necessary to secure equality for females and when the means chosen to achieve that goal are not unnecessarily broad or intrusive. The proposed legislation fails this test.

It fails because it doesn’t make an exception for trans girls and women who’ve never experienced male puberty and so haven’t developed the traits the classification was designed to exclude. It fails because it doesn’t take into account the multiple goals of sport at different levels of play and competition, which range from after school clubs to elite regional events.

It would prohibit even reasonable accommodations like the NCAA’s testosterone rule, which allows trans women to compete with hormone suppression. Finally, anything more than a doctor’s certification of the athlete’s reproductive sex and ongoing testosterone levels is unnecessary scientifically and deeply intrusive.

People of good faith across the political spectrum understand that girls’ and women’s sport has enormous societal value and is worth protecting. Accommodating trans athletes requires taking into account our different, sex-linked biology, something the Constitution and Title IX clearly permit.

Trans advocates who argue that Title IX requires us to recognize that “transgirls are girls” in all circumstances are misstating the law. But the law doesn’t condone unnecessary harm and neither should policymakers.

This doesn’t have to be an “either/or” proposition. When it’s possible to include trans girls and women in ways that enhance their health and well-being and don’t defeat the goals of girls’ and women’s sport, that should be done. When it is possible to enforce eligibility standards without engaging in a fishing expedition through someone’s medical file, that should be avoided. 

Competitive sport is in part about drawing lines and making cuts that—from weight categories to elimination rounds—all have exclusionary effects. In sport, we can’t be only inclusive.

But it is possible to draw lines and make cuts intelligently based on the evidence and respectfully based on an ethics of care. Legislation should be developed that reflects these principles.

Doriane Lambelet Coleman, a collegiate champion runner in the 800 meters, is a professor of law at Duke Law School who has testified before the House Committee on the Judiciary and the international Court of Arbitration for Sport. Nancy Hogshead-Makar T'86 is an Olympic champion, a civil rights lawyer, and CEO of Champion Women, an organization providing legal advocacy for girls and women in sports.