Title IX

I don’t have much time to put together a thorough essay. But when I hear an argument on a subject on which only one side seems logical to me, I worry that I am missing something.

The United States Supreme Court heard arguments this week on challenges to laws in Idaho and West Virginia that prevent (“biological”) boys and men who claim to be “transgender” girls and women from competing in girls’ and women's sports in school environments. The challengers seek to prevent a school from limiting participation in "girls'" sports teams to girls. If successful, the challenges would require schools to allow a boy who wants to participate on a "girls'" sports team to do so.

I see no redeeming argument in principle for the challenges. So that’s why I wonder if I’m missing something.

The challenges before the Supreme Court are based on Title IX (a 1972 federal statute that purports to prohibit discrimination on the basis of sex in education environments) and on the “equal protection” provisions of the 14th Amendment to the U.S. Constitution (adopted in the latter half of the 19th century, about 150 years ago).

Although I am a lawyer, for this discussion I want to focus on grand principles, not the details of statutory and Constitutional language.

Among the most basic principles of human biology is that humans come in as either "male" (boys and men) or "female" (girls and women). "Transgenderism" entails a dissonance between internal feelings and biological reality. There is no objective test for so-called transgenderism. All claims to being transgender are based entirely on the individual's claims and assertions. Any system that grants status to transgender persons depends entirely on the claims of the “transgender person." There is no way to test those claims. And any system that depends exclusively on the claims of individuals is subjective and vulnerable to abuse. So, if the challenge is successful, the practical result would be that any boy could demand the opportunity to participate on the now-inaptly-named "girls' team."

The entire point of Title IX was to provide girls the opportunity to have spaces of their own (including sports) without having to first compete with boys for access to such spaces. A cursory examination of history shows that males (boys) will take over almost any space to which boys are permitted access. Less scientifically established (though clear to many social observers), males tend to dominate fields and spaces to which they are allowed access, likely due to the more inherently aggressive and competitive nature of males. In sports, there are plenty of references available to occasions in which boys who achieved “mediocre” success in boys’ sports dominated all or most of the girls when the boy started competing in the girls' category.

If Title IX means that a (“biological”) boy must be allowed into girls' spaces, why wasn’t the immediate answer to Title IX in 1972 to abolish separate boys' and girls' sports categories? Title IX is pointless if it mandates that any boy who says he wants to enter girls' spaces or to play on girls' sports teams be allowed to do so. All spaces become unisex.

Title IX was to allow girls to have their own sphere for athletic competition, and to try to ensure that these spheres were as comparable to the separate boys' spheres as possible. If (“biological”) boys are allowed to compete in girls’ sports, the field of “girls’ sports" will become dominated by “biological boys," further rendering the point of having separate girls’ and boys’ sports irrelevant. As boys crowd out girls, fewer girls will participate, exactly opposite the stated intention of Title IX.

If the 14th Amendment prevented separate girls’ spaces, why is it that for decades beginning late in the 19th century, stores and other spaces were allowed to provide restrooms and dressing rooms exclusively for girls and women?

Although the details of the case before the Supreme Court are specific to sports and athletics, the answer will also affect other spaces, such as restrooms, locker rooms, showers, and changing areas. Call me a “sexist” if you wish, but girls are much more vulnerable to violence — especially sexual assault — when boys enter girls’ spaces than boys are when girls enter a boys’ space. It is indisputable that part of protecting girls from sexual assault and other violence requires that boys be kept out of certain girls’ spaces, or at least that school authorities be allowed to do so.

So, I can see no logic to the principles behind the challenge currently before the U.S. Supreme Court. Yet this conflict reached the U.S. Supreme Court. For a case to get that far normally signals that there are rational arguments for both sides. And maybe there is something in the nuances of statutory language or case precedence. But as a general matter, I am not seeing the principles for such an argument.

What am I missing?