DOJ: Sex discrimination laws don't cover transgender athletes

Washington D.C., Mar 26, 2020 / 12:00 pm (CNA).- The Department of Justice said Tuesday that biological males who identify as women should not be classified as girls when it comes to athletics. 

Attorney General Bill Barr and several other Department of Justice officials co-signed a statement of interest on March 24 in the case Soule v. Connecticut Association of Schools. The suit was filed by three female high school athletes from Connecticut–Selina Soule, Chelsea Mitchell, and Alanna Smith–who lost races to biological male competitors who identify as girls.

The statement from the Justice Department says that the Connecticut Interscholastic Athletic Conference (CIAC) was wrong in their belief that Title IX required the organization to permit biologically male athletes to compete alongside and against biological females.

“The Connecticut Interscholastic Athletic Conference (CIAC), however, has adopted a policy that requires biological males to compete against biological females—despite the real physiological differences between the sexes—if the male is a transgender individual who publicly identifies with the female gender. CIAC claims that ‘federal law’ requires this state of affairs,” said the statement of interest.  

“They are incorrect,” The Justice Department said.  

The case involves two biologically male athletes who identify as transgender girls. Since they began racing against girls in 2017, they have won 15 state championships between them. The year before, those titles were shared between nine different female athletes. Both of the biologically male athletes ran at least one athletic season without taking cross-sex hormones or puberty blockers. One athlete ran the indoor track season in the winter on the high school boys’ team, before switching to the girls’ team for the spring outdoor track season. 

“Title IX and its implementing regulations prohibit discrimination solely ‘on the basis of sex,’ not on the basis of transgender status, and therefore neither require nor authorize CIAC’s transgender policy,” the DOJ wrote. They said that to the contrary, requiring that biological males who identify themselves as female compete against biological girls, “would turn the statute on its head.” 

“One of Title IX’s core purposes is to ensure that women have an ‘equal athletic opportunity’ to participate in school athletic programs,” they said. 

“Schools realize that purpose primarily by establishing separate athletic teams for men and women and by ensuring that those teams are on equal footing. Because of the physiological differences between men and women, the existence of women’s sports teams permits women to participate more fully in athletics than they otherwise could.”

According to the Alliance Defending Freedom, which is representing the female high school athletes in this case, the two biologically male athletes have “taken more than 85 opportunities to participate in higher level competitions from female track athletes in the 2017, 2018, and 2019 seasons alone.” In high school track, top competitors from qualifying meets are eligible to compete at regional or national meets, where they receive increased attention from college recruiters and potential scholarships.