The change would be driven by a Title IX lawsuit (Federal law) that affirms that when Title IX was signed into law, it intended to protect opportunities based on sex (not gender) and that relative to sports that means chromosomes.
I think it is fair to assume that in the early 1970s, lawmakers did not pass a law that said, "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,” to create a world in which XY humans beat up an XX humans in sports.
I also think it is fair to assume that today's Supreme Court would know this.
Clearly it is XX humans who are being denied the "benefits of" sports participation when XY humans are allowed into their competitions.
Yes, possible, but doubtful any time soon.
A few reasons
1) The executive branch has latitude regarding Title IX interpretation and enforcement.
2) There is already precedent that sex and gender are inexorably intertwined as a matter of law, and discrimination based on gender boils down to a form of sex discrimination. I think this was a major underpinning of Obergefell.
3) Title IX mandates equal participation, but not equal outcomes.
4) Plaintiffs need to be injured to bring suit. Not sure that missing out on the state meet would meet the threshold for example, especially for a plaintiff who would have long ago graduated.
5) Before the SC, the 9th circuit as constituted now would find the CIF is not violating Title IX.
6)G-d only knows who will be on the supreme court when a case about this arrives.
I appreciate your thoughtful and detailed response.
I think that the suit would be backed by a major right wing/Christian organization and they would be court-shopping from Day One. I don't think they would bring the strongest case in the 9th Circuit. I think they would bring it in the 5th or 11th.
The case against the MHSAA (for playing girls' seasons in the wrong time of year) was brought by female athletes who had long since graduated by the time it made it to the Supreme Court, so I think that a harmed athlete could be the plaintiff while in high school and it would stretch out for years after that, but the case would continue.
I absolutely think that missing out on the State Championships, or a podium position is sufficient harm to say that a court should consider whether one has been denied the BENEFITS of participation. Participating is not the only benefit, in and of itself. Earning the rightful gains of one's work is a benefit, as I see it.
I do think that the strongest arguments against this case are your points #1 and #2. I acknowledge that.
I think the strongest case the other way is the simple constitution of the current court, if you can get a case in front of it.
I think today's court would rule that "the law, as written, says 'sex.' If the Legislature intends to mean 'gender,' a new law must be passed."
It is fascinating to see the willingness of many to throw away our women, our girls in the name of boys that feel/believe/choose to be girls (pick whichever applies here).
One could argue that the participation of trans girls in girls' sports is the ultimate male privilege.
That’s an argument that could be made in Texas or Florida or something but not in California
I replied to a similar post.
A successful case would likely start in the 5th or 11th Circuits (including Texas or Florida).
Then, because Title IX is a Federal Law, it would apply to California and every other state, at least regarding educational programs. It would not affect private sports like Little League Baseball or AAU sports.
It is fascinating to see the willingness of many to throw away our women, our girls in the name of boys that feel/believe/choose to be girls (pick whichever applies here).
One could argue that the participation of trans girls in girls' sports is the ultimate male privilege.
Absolutely.
There is an important distinction to be made between tolerating or accepting people who decide to live as if they are members of the other sex and insisting that one literally is the other sex. Arguably, the former is consistent with a free society; the latter is possible only through an authoritarian power grab. It's particularly twisted because those doing the power grab accuse their victims of being the perpetrators.
I appreciate your thoughtful and detailed response.
I think that the suit would be backed by a major right wing/Christian organization and they would be court-shopping from Day One. I don't think they would bring the strongest case in the 9th Circuit. I think they would bring it in the 5th or 11th.
The case against the MHSAA (for playing girls' seasons in the wrong time of year) was brought by female athletes who had long since graduated by the time it made it to the Supreme Court, so I think that a harmed athlete could be the plaintiff while in high school and it would stretch out for years after that, but the case would continue.
I absolutely think that missing out on the State Championships, or a podium position is sufficient harm to say that a court should consider whether one has been denied the BENEFITS of participation. Participating is not the only benefit, in and of itself. Earning the rightful gains of one's work is a benefit, as I see it.
I do think that the strongest arguments against this case are your points #1 and #2. I acknowledge that.
I think the strongest case the other way is the simple constitution of the current court, if you can get a case in front of it.
I think today's court would rule that "the law, as written, says 'sex.' If the Legislature intends to mean 'gender,' a new law must be passed."
I don’t disagree with any of your points, I just don’t know enough about who has standing to sue and what would be a reasonable harm to form the basis of the suit. Time will tell. Thank YOU for the civil discourse on this topic.
Whereas your view seems to be that girls' and women's sports should be for anyone of either sex deemed to have a "feminine" outward appearance, demeanor, personality, inner feelings or claimed sense of self because they conform to some of the most superficially obvious sex stereotypes, sexist appearance standards and sexist ideas about "gender identity" that people with rigid, regressive and misogynistic ideas about girls and women associate with us and insist on imposing on us.
If the world were to go along with the view that girls' and women's sport must include males whose hormone profiles make them atypical for males - whether because of medications they've taken to affect the appearance of "gender transition" or an organic condition or disease - then where does it stop?
After all, lots of males have physical conditions that mean they are at a big disadvantage competing in sports against others of their sex. If some blokes are allowed to use having lower than normal T as a ticket that grants them entry into female sports, why shouldn't that same privilege be granted to males with cystic fibrosis, asthma and hemophilia? And to males who are uncoordinated, slow on their feet or overweight?
I for one don't think a person has to present "feminine" to be considered a female. I know many trans people who present as traditionally male, but their personal gender identity is female. Those people should get to compete in their gender category that corresponds to their identity. There's no misogyny there. It's just empathy.
You are the one trying to set up male vs female sports as advantaged vs. disadvantaged. It does not have to be that. The question is what does the person define themselves as. It doesn't matter if they have an advantage or not. Who are they as a person? That is the only question that matters for their gender category.
Its an athletic competition! Biological males have an advantage...PERIOD! No one is arguing anything else, why do these people, including yourself keep pushing the narrative of this being an attack on their rights and or personal lifestyle preferences? It's NOT.
If everyone should be able to compete according to their "personal gender identity" and how they define themselves, rather than on the basis of their physical sex, then there's no point of having two separate categories for girls/women and boys/men at all.
After all, there are more than a hundred different "gender identities," and more are being invented on Tumblr and announced on TikTok every day. Similarly, there's no end to the varieties of the way that people can define themselves.
If soorts were no longer segregated by sex, then sports would go back to being an area of life in which the vast majority of opportunties to participate, make teams and compete go solely to males, and nearly all the chances to win events, gain glory, get scholarships, have careers and so on go solely to males too.
As to your claim that I am "the one who is try to set up male vs female sports as advantaged vs. disadvantaged" - that's hogwash.
I'm not responsible for creating, nor am I imagining, the myriad physical differences between human males and females that give one sex a clear advantage over the other in nearly all sports.
I'm also not imagining things when I point out that nearly all sports and types of sports competition were invented by men originally for the express purpose of giving boys and men a chance to try, hone and show off the particualar kinds of physical feats that human male bodies are naturally best at and most suited to performing.
We have two categories though. I see no reason to go to one. The current system works just as well when you have people competing according to their gender identities. A female 5:00 1600m runner is probably still going to be a 5:00 1600m runner. Maybe they finish a few spots back than they would have, but it’s not the earth-shattering result you’re making it out to be.
I’m not saying you are inventing the male advantage argument, but I am saying that you are framing your stance on transgender athletes on male physical advantages, and I think that’s a moot point.
Lastly, you honestly think that men invented the sport of running because men are better at running than women?
How exactly is that "a moot point" when that is the entire reason that a separate category for girls/women to compete in was created in the first place?
There is a transgender field hockey player in NJ who has become the poster child for this issue among the organizations like Human Rights Campaign and Congressional Equality Caucus.
Sometime last year, her mother posted a photo of her FH game on her Facebook page, expressing her concerns about the recent moves to ban trans kids from HS sports. Someone posted a comment that she should not be allowed to play because she has unfair advantage. Her reply was "my daughter has been on puberty blocker since age ten, and she is taking estrogen now."
The kid herself does not say anything about the hormone treatment, but the comment section of her Instagram is filled with posts by her supporters who express their frustration over "athletes like Lia Thomas."
So the "LGBTQ organizations" may not be as monolithic as you think.
If the groups like those that went bonkers when the Dodgers temporarily disinvited the sisters of perpetual indulgence, come out and say kids like Athena should not be able to compete according to their gender identity, then yes, that would be a major shift with outsize influence on CA decision makers. So far, it’s not happening. If anything, the out and out trans hate unleashed by these incidents, just strengthens the resolve and the alliance of LGB and T.
No, those organizations don't have to come out and say anything. They can stay on the sideline and remain silent. Those people might be more interested in the fight for the sake of fight. But actual trans athletes and their parents are more interested in what happens to them.
I will cite another example. There is a softball player in OH who has just finished her senior season. She is a mediocre player on a mediocre team. Her mother said all the medical documents they had to submit to the state HS association were cumbersome and sometimes even intrusive but she thought they were absolutely necessary.
And as I wrote above, CIF should worry about something beyond the state politics. The federal law and the federal court decisions will affect all states.
I’m not sure how many of you regularly interact with these young women HS athletes from CA, but I’d bet it’s more likely they would walk off the line in protest if Athena was banned than they would walk off in protest that she’s allowed to compete. I can’t prove it, but I think a lot of you would be surprised if you spoke to them privately, one on one with no fear of backlash one way or another. What’s for sure, there’s no uniformity of viewpoint across the field.
I, too, have met plenty of girls and young women who have been so shielded from male physical advantage and male aggression that they don't accurately understand sex differences or the danger presented by erasing females in law and culture. I know plenty of girls and women whose compassion and empathy are being harnessed to render them complicit in their own oppression. Emotional blackmail is incredibly effective," Do you really think your gold medal is more important than a trans girl's right to EXIST?" It's all so twisted and manipulative, like half the country has borderline personality disorder when it comes to sex/gender (and a handful of other things).
Why are you so sure their views are not well reasoned and enlightened? I held a more trans exclusionary view and it was the young women in my personal and professional life that convinced me otherwise. The women NOT the men. They categorically reject the idea that including Athena in their space erases them. People seem to think this is a trick being played on women by old guys like me. Well, in my corner of the world, it’s the other way around.
Just to add on, more than a few of these women have experienced dismissal, discrimination and abuse at the hands of men. They just don’t see the Athenas of the world as a threat. No, she’s an ally.
This post was edited 12 minutes after it was posted.
We have two categories though. I see no reason to go to one. The current system works just as well when you have people competing according to their gender identities. A female 5:00 1600m runner is probably still going to be a 5:00 1600m runner. Maybe they finish a few spots back than they would have, but it’s not the earth-shattering result you’re making it out to be.
I’m not saying you are inventing the male advantage argument, but I am saying that you are framing your stance on transgender athletes on male physical advantages, and I think that’s a moot point.
Given that you now seem to be acknowledging that males do have a physical advantage over females in sport, what leads you to contend that my view - which is that adopting or claiming a trans gender identity and/or undergoing "hormone treatment" does not cause males to lose all the physical advantages they have over females that matter in sports - is "a moot point"?
As I understand it, "moot point" means "subject to dispute or debate." What exactly is disputable and debatable about my position? And why? I really want to know.
Your own stated admission that including trans-identified male athletes in female sports will at the very least cause some female athletes to "finish a few spots back than they would have" appears to concede that trans-identified males do and will retain a physical advantage because of their male sex.
It's just that you claim that males using their physical advantage to push females down to lower places in the rankings in the girls' and women's category is "not the earth-shattering result you’re making it out to be."
From what you've said, you not only think female athletes don't have the same right to fairness in sports as male athletes do - and our pride, sense of personal accomplishment and mental health don't matter much - but you think male athletes who claim a trans gender identity should be accorded special treatment and privileges no other males get.
The change would be driven by a Title IX lawsuit (Federal law) that affirms that when Title IX was signed into law, it intended to protect opportunities based on sex (not gender) and that relative to sports that means chromosomes.
I think it is fair to assume that in the early 1970s, lawmakers did not pass a law that said, "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,” to create a world in which XY humans beat up an XX humans in sports.
I also think it is fair to assume that today's Supreme Court would know this.
Clearly it is XX humans who are being denied the "benefits of" sports participation when XY humans are allowed into their competitions.
Do you have a link for this? Why didn’t it happen for the Connecticut sprinters or Lia Thomas? Will 2 transgender 1600m runners at the CIF state meet trigger a case that goes all the way to the Supreme Court? Who will be suing who?
Thomas case did not reach any court because NCAA has already changed its rule, and Thomas is ineligible in any competition sanctioned by USA Swimming or World Aquatics. If anyone has legal standing to sue anyone, it's Thomas against USA Swimming and World Aquatics. And no sane lawyer will take that case.
And if I am not mistaken, the Connecticut case has been reopened, although all the parties involved have already graduated from high school.
A federal appeals court has reinstated a challenge to Connecticut’s policy of allowing transgender girls to compete in girls high school sports, two months after a three-judge panel upheld the rules.
Thank you for sharing the update on the case in Connecticut.
Two issues that I find interesting. First:
"In December, a three-judge panel said the four cisgender athletes lacked standing to sue — in part because their claims that they were deprived of wins, state titles and athletic scholarship opportunities were speculative."
----While whether you would have won is speculative, whether an athlete would have advanced to a championship is not. If you finish one spot out of qualifying for a final or a Championship and a trans athlete beat you, there is no speculation.
Second, the position of the lawyer representing the "right" of trans athletes to participate:
“As the initial ruling found, cisgender girls lose nothing from the participation of transgender girls and Connecticut’s policy simply recognizes the right of all student athletes to equal participation and protection under Title IX,” Joshua Block, an attorney for the ACLU, said in a statement.
---- That position is absurd on its face. If you finish second behind a trans athlete in the State Championship, of course you have lost something. Who could even begin to argue that you have not lost something?
This post was edited 1 minute after it was posted.
Thank you for sharing the update on the case in Connecticut.
Two issues that I find interesting. First:
"In December, a three-judge panel said the four cisgender athletes lacked standing to sue — in part because their claims that they were deprived of wins, state titles and athletic scholarship opportunities were speculative."
----While whether you would have won is speculative, whether an athlete would have advanced to a championship is not. If you finish one spot out of qualifying for a final or a Championship and a trans athlete beat you, there is no speculation.
Second, the position of the lawyer representing the "right" of trans athletes to participate:
“As the initial ruling found, cisgender girls lose nothing from the participation of transgender girls and Connecticut’s policy simply recognizes the right of all student athletes to equal participation and protection under Title IX,” Joshua Block, an attorney for the ACLU, said in a statement.
---- That position is absurd on its face. If you finish second behind a trans athlete in the State Championship, of course you have lost something. Who could even begin to argue that you have not lost something?
Here is the text:
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.
I guess the issue is whether or not coming in 2nd instead of first is being denied a benefit under this law. I don’t know if that is straightforward and suspect it’s not. Also, this assumes you can clearly demonstrate this loss happened because of the sex of the winner-not something else, and I think that’s not clear cut either in a legal sense-and NO I’m not arguing that sex doesn’t matter in terms of performance.
Second, the position of the lawyer representing the "right" of trans athletes to participate:
“As the initial ruling found, cisgender girls lose nothing from the participation of transgender girls and Connecticut’s policy simply recognizes the right of all student athletes to equal participation and protection under Title IX,” Joshua Block, an attorney for the ACLU, said in a statement.
---- That position is absurd on its face. If you finish second behind a trans athlete in the State Championship, of course you have lost something. Who could even begin to argue that you have not lost something?
I think the argument is that no one's right to "participate" was lost. (Not that I agree with the ACLU lawyer.) While a cis gender athlete may finish one or two places lower than otherwise, her right to participate is not denied by someone else's participation. The only time her right to "participate" is infringed on is if she misses making the state meet by one spot, or misses advancing to the final by one spot. And those did not happen in this case. (Someone else DID miss the opportunity. But none of the plaintiffs in the suit did.)
There are non binary divisions in road races now. What is rule is being broken by having a separate division where all competitors are equal?
The transgender athletes are allowed to compete in the girls division. Your scenario is taking that right away from them. HS sports have absolutely nothing to do with non-binary divisions in road racing.
But there was a separate division and this is the category trans females were required do compete in, do you think this is a fair solution?
Thomas case did not reach any court because NCAA has already changed its rule, and Thomas is ineligible in any competition sanctioned by USA Swimming or World Aquatics. If anyone has legal standing to sue anyone, it's Thomas against USA Swimming and World Aquatics. And no sane lawyer will take that case.
To be accurate, the NCAA is still in the process of changing its rules. Trans-identified NCAA athletes won't have to comply fully with the sports-specific standards set out by World Acquatics in June 2022 and by World Athletics in March 2023 until the 2024-25 season. The starting date is August 1, 2024.
I've found it hard to grasp the exact rules in force at the present moment because rather than set out the rules all in one place, the NCAA has scattered them in piecemeal fashion here and there across a bunch of different documents that deal with different aspects and say different things.
But the impression I get is that until August 1, 2024, other trans-identifed male athletes like CeCe Telfer or Lia Thomas could compete in NCAA women's events and win women's NCAA national championship titles so long as they can document that they've suppressed their serum testosterone to "within the allowable levels for the sport in which the student-athlete plans to compete" for a year prior to starting to compete in women's events.
The NCAA interim rules now in force don't say what the "allowable levels" are. My hunch is that for aquatics and for track & field, they probably mean the 2.5 nmol/L level that both of the WAs have used in their new rules as the threshold for males who began "medical transition" by being put on "puberty blockers" as pre-teens - and that World Athletics is now using for XY DSD athletes like Semenya, Niyonsaba and Mboma.
But that's just my hunch. The NCAA rules now in force don't actually say.
At its January 19, 2022 meeting, the NCAA Board of Governors updated the transgender student-athlete participation policy governing college sports. The new policy
Second, the position of the lawyer representing the "right" of trans athletes to participate:
“As the initial ruling found, cisgender girls lose nothing from the participation of transgender girls and Connecticut’s policy simply recognizes the right of all student athletes to equal participation and protection under Title IX,” Joshua Block, an attorney for the ACLU, said in a statement.
---- That position is absurd on its face. If you finish second behind a trans athlete in the State Championship, of course you have lost something. Who could even begin to argue that you have not lost something?
I think the argument is that no one's right to "participate" was lost. (Not that I agree with the ACLU lawyer.) While a cis gender athlete may finish one or two places lower than otherwise, her right to participate is not denied by someone else's participation. The only time her right to "participate" is infringed on is if she misses making the state meet by one spot, or misses advancing to the final by one spot. And those did not happen in this case. (Someone else DID miss the opportunity. But none of the plaintiffs in the suit did.)
Lawyers are careful with their words. I am taking the quote as it was offered.
"Cisgender girls lose NOTHING from the participation of transgender girls...."
Of course, this is why we have court cases, I suppose.
In this case it would have to tease out (in a Title IX case) what is meant by "denied a benefit" and "sex."
In the quote we see that the ACLU argued there is no loss of participation opportunity or the benefit thereof. I would argue the opposite.
And we agree that in knock-out sports (only so many advance), there is an identifiable person who clearly was denied a right to participate.
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