Fairness for Female Athletes Is a Civil Rights Argument, Made With Respect

Let me begin with a sentence that this debate rarely allows: you can disagree with me about this and still be a decent person. I will argue my side as hard as I can, and I will try to state yours so that its defenders say, "yes, that is what we mean." If we cannot do that on a subject that touches real people's lives, we have no business raising our voices on any other.

The subject is whether women's sports should remain a category defined by sex. My answer is yes, and my claim is that the answer is a civil-rights position, not a retreat from one. It rests on a law, a history, and a principle about what competition is for. I will define the terms, number the premises, give the other side its strongest form and then answer it. I will not name any individual athlete, because this argument is about rules, and because a rule that needs a villain is a bad rule.

The terms

Three words carry most of the weight, and the argument goes wrong when people use them loosely.

Category. A sports category is a group of competitors who are grouped so that the competition among them is meaningful. Weight classes in boxing and wrestling, age groups in youth leagues and masters events, and the division between men's and women's events are all categories. A category is not a verdict on anyone's worth. It is a tool for making the contest fair.

Sex. In this essay I mean the biological category of male and female, which is the category that sports have historically used, and which the law of Title IX used when it was written in 1972. I am not making claims about anyone's identity, and I am not making medical claims. I am describing what the rules of sport have used to sort competitors.

Fairness. Fairness in sport means that the outcome should be decided mainly by training, skill, discipline and effort, and not by a category-level advantage that no amount of effort could close. This is the idea behind every classification in sport, from the weight class to the age bracket.

The law: what Title IX says, and what it was for

Title IX of the Education Amendments of 1972 is a short statute. Its core sentence reads: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." That is thirty-seven words, which in Washington counts as a haiku. It does not mention sports. It did not need to. Its effect on school athletics was enormous because athletics are a part of education, and because before 1972 girls were routinely given little or nothing.

The Department of Health, Education, and Welfare then wrote regulations in 1975, and those regulations, carried in the Code of Federal Regulations at section 106.41 of Title 34, say that a school may operate separate teams for members of each sex where selection is based on competitive skill or the activity involved is a contact sport. In other words, the same government that wrote the anti-discrimination rule also wrote, in the same framework, a rule that permitted and in some circumstances expected sex-separate teams. The two sentences are not in tension. They are two halves of one design: open every door to women and girls, and keep a category in which they can win.

In 1979 the department issued a Policy Interpretation on athletics, which set out how a school could show that it was effectively accommodating the interests and abilities of both sexes. The interpretation is best known for its three-part test: a school complies if participation opportunities for each sex are substantially proportionate to enrolment, or it has a history and continuing practice of expanding opportunities for the underrepresented sex, or it can show that it fully and effectively accommodates that sex's interests and abilities. Whatever one thinks of the test (and compliance officers have been thinking about it, loudly, for decades), notice what it presupposes. It counts opportunities by sex. It takes for granted that "women's teams" and "men's teams" exist and that the point is to make sure the former are not shortchanged.

That is the legal foundation: a category defined by sex, protected by a civil-rights statute, for the purpose of giving women the thing they had been denied. The history of how that came to be, and why the separate category was a victory and not a restriction, is in Why Women's Sports Were Separated in the First Place, From 1900 to Title IX.

The principle: why sports divide at all

Why do we divide athletes into categories? Not out of prejudice. We do it because open competition among people with large average differences produces a field in which a whole group rarely reaches the podium. Boxing has weight classes because a heavyweight and a flyweight should not be matched. Children's leagues have age groups because a nine-year-old should not face a seventeen-year-old. Paralympic sport has classifications that group athletes by the effect of an impairment on the event. Nobody says that a weight class insults the lighter boxer.

The division by sex follows the same logic. After puberty, the sports federations responsible for this question have concluded that male and female bodies differ on average in ways that matter for speed, strength, power and endurance, and that those differences translate into performance gaps in most events. I am not going to quote figures here, because the governing bodies publish their own reasoning, and I urge readers to read it directly. The relevant point for the argument is simple: if there were no such category-level difference, there would never have been a reason to create a separate women's category in the first place.

Here is the first numbered premise. One: the women's category exists because, absent it, women would rarely win. That is not a slight. It is the reason the category was demanded and won.

The policies

Two major international federations have set rules on the question, and I describe them as documented policy, not as my own invention.

In June 2022, the international federation for swimming and aquatic sports, then known as FINA and now World Aquatics, adopted a policy that limited the women's category to athletes who had not gone through male puberty (in practice, those who transitioned before the second stage of puberty or age 12), and created an open category. In March 2023, World Athletics, the federation for track and field, announced that it would bar from the women's category athletes who had gone through male puberty, and the restriction took effect on March 31, 2023, for the federation's female world-ranking competition. Other federations have set their own rules, and they differ. I cite these two because they are clear, public and based on the federations' own published reviews.

You may agree or disagree with them. The point is that sport's governing bodies, in the sports that are most about speed and strength, concluded that fairness required a category with a boundary, and put the boundary in writing. That is a normal thing for a governing body to do, and it is one of the few occasions when a sports federation decided something before the stopwatch did. It does not require anyone to be a villain.

The inclusion argument, at its strongest

The opposing view deserves a full statement, and here it is as its best defenders would put it.

People who are transgender are people, and sport is a good thing: it teaches discipline, it builds friendship, it brings health, and it gives young people a place to belong. Excluding a group from the sport that matches their identity can feel like exclusion from the community itself. Defenders of inclusion note that the number of athletes affected is very small, that the average advantage of male-typical development is not the same in every case, and that rules which police the category can lead to invasive scrutiny of all women and girls. They add that sport has changed its definitions before, and that a society that cares about fairness should be willing to look for approaches that include as many people as possible, such as case-by-case review, hormone thresholds, or an open category.

That argument is made by serious people who care about the dignity of everyone involved. It deserves to be heard without sneering. I am going to answer it on its merits, and I am going to begin by granting what is right in it: the people in question are people, the desire to take part in sport is a good desire, and no policy should be defended in language that wounds.

The answer, point by point

Two: fairness for one group cannot be bought by unfairness to another. Every category rule has to choose, and there is no neutral option. If the women's category admits anyone whose body developed under male puberty, the women who compete against them bear a cost. If it excludes, the people excluded bear one. Policy is the art of choosing which cost to impose and defending the choice. The cost of unfairness in the women's category falls on a group that fought for decades to have it, and that group has a claim to the category's integrity at least as strong as anyone's claim to enter it.

Three: the number of people affected is not an argument for ignoring the category. The inclusion case says that few athletes are involved. But fairness in a podium finish is a matter of principle even when it is rare. A single scholarship, a single place on a team, a single final, are zero-sum. A rule is judged by the case it must decide, not by how often the case arises.

Four: case-by-case review sounds humane and tends to be intrusive. The inclusion case warns that policing the category could lead to invasive scrutiny of women. That is a real worry, and it is a reason to design rules around objective, documented criteria, such as the federations' puberty-based standards, and not around suspicion or appearance. A clear rule written in advance protects athletes from guesswork. A rule that says "we will decide each case" invites the very scrutiny that it claims to avoid.

Five: an open category is a reasonable idea, and it supports my position. Several federations have proposed or adopted open categories for those who do not fit the women's classification. That is a way of saying that everyone should have a place to compete, and that the women's category is a protected one. A person who proposes an open category is conceding that the women's category has a boundary. The disagreement is about where to put it, and who decides.

Six: the argument from changing definitions proves less than it seems. Sport has indeed changed its rules over time. But changing a rule in order to be more inclusive of women, as Title IX did, is a different act from changing a category so that its original purpose is weakened. The first widens the door. The second may close the one door the category was built to keep open.

What a civil-rights argument looks like

The phrase "civil-rights position" is chosen on purpose. A civil right is a protection against being denied an equal chance on a basis that has nothing to do with merit. Women were denied equal opportunities in sport for most of American history, and Title IX was the answer. The women's category is the structure that makes the equal opportunity real: without it, the prize goes elsewhere.

There is a deeper tradition behind this. The American civil-rights tradition at its best says that the law must treat people as individuals and must not impose or withhold benefits on the basis of a group trait. That principle, which Justice Harlan wrote into a famous dissent in 1896, is discussed in Colorblind Law Is Not a Code Word, It Is Harlan's Dissent Made Good. Sex-based categories in sport are a narrow, defined exception that civil-rights law itself allows, because a category based on sex is the only way to give women a fair contest. Defending it is not hostility to anyone. It is a commitment to the group the statute was written for.

Two limits I would put on the argument

A fair writer should say where his own claim stops.

First, the argument is about competitive categories, and about elite and organised competition above all. It is not an argument about recreational play, physical education for young children, or the way a friendly neighbourhood game is run. Those are places where a good rule can be flexible, and where adults should use judgment and kindness.

Second, nothing here licenses cruelty. A person who is transgender is a person with the same rights as anyone before the law, including the freedom to speak and the freedom to be treated with courtesy. The question of what words the law may require of you is a different one, and I take it up in Speech, Pronouns and Compelled Words, Where the First Amendment Draws the Line. And the separate question of who should decide policy on minors and medical treatment, which is not a sports question, is taken up in Who Decides Gender Policy for Minors? The Case for the Legislatures.

The scoreboard test

Here is the practical test I would apply to any sports rule. Ask: would a girl training at five in the morning, who has never made a podium and may never, still be able to say that the contest she entered was the one she was told she was entering? A rule that passes that test is a fair rule. The scoreboard, as I argue in What If Every League Abolished the Scoreboard in the Name of Equity, is the thing that tells the truth about whether a contest was fair. A category that has lost the meaning of its boundary has lost the scoreboard's value.

For a reminder of what the integrity of a clock can do for a person that society was slow to credit, see Jesse Owens in Berlin and the Honours His Own Country Was Slow to Give. The principle that made his four golds count is the same principle that makes a girl's first place count: a fair contest, fairly measured.

The case in brief

1. Title IX of 1972 bars sex discrimination in education programs, its athletics rules allow sex-separate teams, and the 1979 policy interpretation counts opportunities by sex, so the law itself rests on a sex-based category.
2. Sport divides competitors into categories so that competition is meaningful, and the women's category exists because without it women would rarely win.
3. World Aquatics in 2022 and World Athletics in 2023 wrote public policies that put a boundary on the women's category, and clear rules written in advance serve athletes better than case-by-case guesswork.
4. The inclusion argument is made in good faith and deserves respect, but fairness to one group cannot be bought by unfairness to another, and an open category offers a place for everyone without erasing the women's one.

What you can do: read the actual text of Title IX at 20 U.S.C. section 1681 and your local school district's athletics policy, then attend a school board meeting and ask that the policy be stated in writing.