Deeply divided, the States of this nation now divide precisely in half as to whether male athletes ought to compete in female sports against female athletes. Reflecting this deep division, federal appellate courts continue to split over how to decide these kinds of issues. We are asking the Supreme Court to resolve the significant jurisprudential disagreement evident in these Circuit splits. The Court should do so now because predictability in the law is necessary for good governance under the Rule of Law, especially during times of cultural discord.
Consistent judicial decisions, grounded in honest interpretation, give government officials and others notice of what is prohibited. When it comes to judicial review of government action and constitutional provisions, consistent decisions provide predictability for officials seeking to act in accordance with constitutional standards. Inconsistent judicial precedents lead to unpredictability in the law, providing no beneficial guidance for government officials or others trying to act within the law. We are are among those seeking to act within the law in the midst of a nation divided.
The Fourteenth Amendment to the United States Constitution provides, that “no State shall … deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. 14. This guarantee of equal protection greatly advanced fairness in opportunities for women in sports. For example, Congress subsequently statutorily removed obstacles precluding women, based on their sex, from participating in educational opportunities. 20 U.S.C. §1681, et seq. Here, Title IX provides that:
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…. 20 U.S.C. §1681(a).
What does sex mean for the purpose of the Equal Protection Clause and Title IX? Challenges to the advancement of fairness for women in sports occurs when male athletes subjectively self-identify as female. Because they claim legal protection flowing from fluid gender identity formulations, their claims collide with objective biological science showing sex as immutable. Does a policy enabling male athletes to identify as female create an unfair playing field? Does it endanger competing female athletes? Does it unfairly displace scholarships intended for female athletes? Responding to these concerns, university athletic programs, conferences, and associations sought solutions. One of these athletic associations was the National Association of Intercollegiate Athletics (NAIA). The second largest governing body of collegiate sports, the NAIA, includes 237 institutions in twenty-one conferences. The Association formed a Task Force in April 2022. https://www.naia.org/transgender/index (last accessed July 22, 2024).
Like the NCAA’s policy prior to January 2022, NAIA’s policy allowed male athletes to compete on women’s teams if they asserted a gender identity as female and undertook a year of androgen suppression. Id.
The NCAA changed its policy in January 2022 so that the applicable Olympic national governing body (NGB) policy for each sport corresponded to the NCAA’s policy for each sport Id.[1] The NAIA’s Task Force thereafter reviewed NAIA’s existing policies governing sports participation. Id. The Task Force sought to ascertain if a need existed to modify current policy. Id. If so, the Task Force was charged with proposing recommended changes for the Council of Presidents to consider. Id.
Twenty-four months of diligent study ensued, ultimately producing a new policy governing participation and competition on female sports teams. Id. A Council of NAIA Presidents unanimously approved the policy on April 8, 2024, with an effective date of August 1, 2024. Id.
The Task Force and Council of Presidents assiduously avoided stereotyping and stereotypes. Instead, its two-year study demonstrated the relevance of biological sex to “supporting the fair and safe competition opportunities for all student athletes.”
Transgender Participation Policy (April 8, 2024), https://www.naia.org/transgender/files/TG_Policy_for_webpage_v2.pdf (last visited July 22, 2024) (hereafter NAIA Policy)
The underlying foundation for the new policy included: creating a fair playing field; ensuring safety for competing athletes; and precluding male athletes from unfairly taking scholarship positions of female athletes. Id.
The Task Force study found that each NAIA male and female sport “includes some combination of strength, speed, and stamina, providing competitive advantages for male student athletes.” Id.; see also, D. Coleman, Sex in Sport, 80 L. and Contemporary Problems 63, 74 (2017)). As to whether NAIA policy should, in female sports, permit men to compete against women, each of these facts rationally relate to, and are necessary for, creating a fair playing field, ensuring safety for competing athletes, and precluding male athletes from unfairly taking scholarship positions of female athletes. Understanding the significant impact of biology in sports competition, the NAIA, therefore, reasonably and necessarily “created separate categories for male and female participants.” NAIA Policy;see also, Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 801 (11th Cir. 2022) (applying objective biological understanding of sex as immutable in recognizing inherent difference between boys and girls); United States v. Virginia, 518 U.S. 515, 533 (recognizing that “[p]hysical differences between men and women … are enduring … [i]nherent differences between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.”)
In our argument before the Supreme Court, we called on the Court to approach with caution cultural calls to cancel objective biological science in the context of the Equal Protection Clause, and statutes like Title IX. Medical experts in Europe now recognize that the “use of masculinizing / feminizing hormones … present many unknowns….” Independent Review of Gender Identity Services for Children and Young People, Final Report to NHS ENGLAND, https://cass.independent-review.uk/home/publications/final-report/ (last visited July 23, 2024). Indeed, the “strengths and weaknesses of the evidence … are often misrepresented and overstated, both in scientific publications and social debate.” Id. While “a considerable amount of research has been published in this field, systematic evidence reviews demonstrated the poor quality of the published studies, meaning there is not a reliable evidence base upon which to make clinical decisions, or … to make informed choices.” Id.
Moreover, elevating self-identifying subjective gender fluidity over the objective biological truth that sex is immutable results in the unfair and unjust outcomes for female athletes. See, Women’s Sports Policy Working Group, Male Victories in Female Sports, https://womenssportspolicy.org/253-male-victories-in-female-sports/ (last visited July 23, 2024). With this unfairness as a backdrop, it is important to understand that under the NAIA policy no athlete is prevented from NAIA competition. To be sure, the policy provides clear lanes as to which category the athlete competes. Thus “[o]nly NAIA student-athletes whose biological sex is female may participate in NAIA-sponsored female sports.” NAIA Policy. In addition to providing every athlete with a fair opportunity to compete, the NAIA policy also recognizes the natural inherent dignity of human beings by ensuring “appropriate privacy protections” for athletes. Id.
CONCLUSION
Male athletes continue to self-identify as female. Subjectively fluid gender identity formulations continue to collide with objective biological science showing sex as immutable. And federal courts continue to split over whether to choose truth or fiction in resolving these cases and controversies arising under the Constitution and laws of the United States. This case provides the opportunity for the Court to resolve the significant Federal Appellate Court splits dividing the nation, and restore some sanity to this nation’s judicial institutions, just as the NAIA did in the Academy.
[1] Under International Olympic Committee policy, the NGB for each sport determines whether men may compete against women in female events. For sports where no applicable NGB policy exists, the NCAA expects to use either United States Olympic & Paralympic Committee policy or International Federation Policy. Id.
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