Relocations: Some controversies defy ideological resolution

The USPS stamp set commemorating the 50th anniversary of Title IX.
July 22, 2022

Princeton swimmers argued that Penn’s Lia Thomas threatened 50 years of women’s equality in sports

By Herbert Rothschild

This year is the 50th anniversary of Title IX of the amendments to the Elementary and Secondary School Act. The U.S. Postal Service commemorated it with a strikingly designed “forever” stamp. Rightly so. The legislation was a game changer. According to the Women’s Sports Foundation, in 1972 only one in 27 girls played organized sports; today two in five play. The 1972 U.S. Olympic team had 90 females and 339 males. For the 2021 Olympics in Tokyo, the team had 329 females and 284 males.

Herbert Rothschild

When the act was first promulgated, the director of athletics at a Baton Rouge High School said that women were welcome to try out for the football team. Our ACLU chapter responded that we were certain that would not satisfy the intent of Congress, which was to mandate equal opportunity to participate. Undoubtedly, many females can outperform many males, but at any given level of proficiency males have a physiological advantage. It was the institution of women’s sports teams and leagues that offered women equal opportunity to gain the benefits of playing organized sports.

Ah, but our world has become more complex. One feature of its complexity is the questioning of binaries, no more frequently so than in the case of gender. The most radical position — characteristic of the post-modern intellectual movement called deconstruction — is that gender, like race, is solely a social construct. Viewed through that lens, some of what I wrote in the preceding paragraph is problematic, if not hopelessly “unwoke.”

Gender can indeed be fluid, but just as radical deconstructionists embarassed themselves trying to characterize natural science as simply another socially constructed discipline, so when it comes to gender, there is a bedrock of material reality. The speed of light is 186,000 miles per second, whether it’s measured by whites or people of color. Testosterone and estrogen have specific effects on human development whether they’re studied by men or women. And thus the issue of transgendered females playing women’s sports cannot be characterized as simply an ideological one.

I suspect that you, like me, have condemned Republican attacks on transgendered individuals based on assertions of a binary decreed by God or Nature. Laws that require people to use the school bathroom reserved for the gender identity they had at birth are indefensible. Such laws are akin to the old Jim Crow laws both in motive and faulty justifications. Transgendered people have become the new target for politicians who play to our basest emotions, and violence against the transgendered is distressingly common.

It would be a mistake, though, to rely on the same reasoning to dismiss out-of-hand laws forbidding transgendered females from playing women’s sports. Yes, the legislators’ motives may often be the same, but there is a justification for these laws that merits consideration in the public forum and in the courtroom. The justification is that they protect the intent of Title IX.

The swimming career of Lia Thomas has provided a sharp focus for this debate. Thomas, who graduated from the University of Pennsylvania in May, swam on the Penn’s men’s team from 2017 to 2021, and on its women’s swim team from 2021 to 2022. During her transition, she underwent testosterone suppression and hormone replacement therapy and lost some muscle mass and strength. Nonetheless, she rose from being a good male swimmer to an outstanding female swimmer. In 2021, she swam a near-lifetime best in the 100-yard freestyle and a lifetime best in the 50-yard freestyle. This March she won the NCAA Division I championship in the 500-yard freestyle.

In January, women from the Princeton swim team complained to the executive director of the Ivy League athletic conference about the competitive advantage Thomas had. They argued that allowing her to swim was undermining 50 years of women’s equality in sport. They got no relief. However, last month the International Swimming Federation (FINA), which administers international aquatic sports competitions, voted to bar all transgender athletes from competing in women’s swimming, with the exception of athletes who can establish to FINA’s satisfaction that they transitioned before the age of 12 or before they reached Stage 2 on the Tanner puberty scale.

The FINA rule strikes me as wise. This is a problem that calls not for a meat cleaver but for a scalpel. In that metaphor, I mean for the meat cleaver to stand for ideology and for the scalpel to stand for consideration of all the relevant components of a given situation. For example, had Thomas been playing a team sport like soccer, her physical advantages would affect the outcome of games only slightly, if at all.

Unfortunately, law-making isn’t a nuanced process, so legislation is not going to produce good results. Nonetheless, last year Rep. Greg Steube (R-Fla.) introduced the Protection of Women and Girls in Sports Act, and House Minority Speaker Kevin McCarthy has pledged to bring such a bill up for a vote next year if Republicans win control of the chamber.

Judges generally make finer discriminations than legislators, but it’s doubtful whether the courts will resolve this conflict of legitimate interests satisfactorily. Two years ago, the U.S. Supreme Court held in Bostock v. Clayton County that sex discrimination in employment under Title VII of the 1964 Civil Rights Act encompasses discrimination on the basis of sexual orientation and transgender status. Since the statutory prohibition against discrimination based on sex in Title IX is similar to Title VII, several lower courts have ruled that the Bostock ruling is determinative in Title IX cases. That is the current position of the U.S. Department of Justice in its updated Title IX Legal Manual.

Every now and then I’m tempted to think that the best form of government would be Plato’s Philosopher King.

Herbert Rothschild is an unpaid Ashland.news board member. Email him at herbertrothschild6839@gmail.com.

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Bert Etling

Bert Etling

Bert Etling is the executive editor of Ashland.news. Email him at betling@ashland.news.

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