Jennifer C. Braceras is director of Independent Women’s Law Center and lead author of ‘Competition: Title IX, Male-Bodied Athletes, and the Threat to Women’s Sports.’
USA Swimming’s new policy to accommodate transgender athletes discriminates against women.
Last month, faced with growing controversy over transgender athlete Lia Thomas’s utter domination of women’s collegiate swimming competitions, the NCAA threw up its hands.
The NCAA Board of Governors voted for a sport-by-sport approach to addressing the issue.
They empowered the governing bodies of each sport to set eligibility for women’s competitions based on sport-specific testosterone requirements.
Unfortunately, USA Swimming’s attempt to strike a compromise that would accommodate some transgender athletes while also preserving fair competition for women is a complete failure.
The insistence by the NCAA and USA Swimming that there is a way to create fair competition between post-pubescent males and females denies science.
And the end product is a policy that favors inclusion of transgender athletes at the expense of women.
The new policy, which endorses the participation of trans athletes in women’s sports, requires athletes to prove to an independent committee of experts that their testosterone levels have been less than 5 nmol/L for a period of at least thirty-six (36) months.
Athletes must also show that ‘prior physical development … does not give the athlete a competitive advantage over the athlete’s cisgender female competitors.’
The new rule does nothing to prevent discrimination against women or to preserve equal opportunity for female athletes.
The insistence by the NCAA and USA Swimming that there is a way to create fair competition between post-pubescent males and females denies science. (Above) UPenn’s Lia Thomas (in back row with whit sunglasses) with teammates
The debate about trans athletes in women’s sports is not just about Thomas (above). Nor is it solely about testosterone. It’s also about equal opportunity under Title IX, the 1972 law passed to increase opportunities for women and girls in education, including athletics.
To begin with, while the 5 nmol/L swimming T-level is lower than that the previous International Olympic Committee standard (10 nmo/L), it is still significantly higher than the T-levels typically found in females, including elite athletes.
Studies of average female T-levels have varied on the precise range, with some indicating a range of 0.12 to 1.79 nmo/L, but the point is the same — 5nmo/L is not within the average female range.
Moreover, a comprehensive review of the scientific literature released last summer by Independent Women’s Law Center and Independent Women’s Forum reveals that hormone therapy does not eliminate the athletic advantage that post-pubescent men have over females.
Indeed, many of the changes brought about by male puberty (such as changes to skeletal architecture) are permanent and unalterable by testosterone reduction later in life.
Testosterone suppression will not, for example, make a person shorter or reduce a person’s wingspan. And, while hormone therapy will weaken a male body, it will not weaken it to female levels.
Joanna Harper, a medical physicist, long distance runner, and advisor to the International Olympic Committee, who is transgender, admits as much.
Despite more than 15 years of hormone therapy, Harper says, ‘I carry more muscle mass than a woman my size, absolutely.’
The new rule may very well prevent Lia Thomas, who swims for the University of Pennsylvania, from competing at league and NCAA Championships. (It is unclear if Thomas has suppressed her testosterone to the required level for 36 months).
But the debate about trans athletes in women’s sports is not just about Thomas. Nor is it solely about testosterone.
It’s also about equal opportunity under Title IX, the 1972 law passed to increase opportunities for women and girls in education, including athletics.
USA Swimming’s new rules may prevent transgender women from dominating women’s sports – benefitting the highest-performing female athletes — but it does nothing for the vast majority of female athletes that don’t rank among the best in their sport.
Allowing biological males to compete as athletes on women’s teams with limited rosters inevitably means there will be fewer spots on those teams for females – and, perhaps, less playing time or scholarship money for those females who do make the team.
In head-to-head competitions, allowing male-bodied athletes to race women means that there are fewer lanes open to females.
So, even if athletic associations could, theoretically, create fair competitions between elite male and female athletes, female athletes still lose out.
And they lose not just opportunities but self-confidence.
Forcing women to measure the capabilities of their own bodies against impaired male bodies, takes an emotional toll.
As one former NCAA athlete and mother of an Ivy League swimmer who has raced against Thomas explained in a press call with five United States Senators, ‘women are being asked to measure up to [a new standard]-that of a hormonally-influenced male body.’
‘[This] is not empowering for women, it is damaging. It is deeply misogynistic and demeaning. We are not encumbered-male bodies, we are female.’
Females, who may very well be traumatized from being forced to share a locker room with athletes with male genitalia.
‘It’s definitely awkward because Lia still has male body parts and is still attracted to women,’ one swimmer on Thomas’s UPenn team told DailyMail.com in an exclusive interview.
Will Lia Thomas be allowed to compete in championships? If not, she or her school may very well sue to demand entry.
But therein lies the problem: courts shouldn’t be asked to determine the appropriateness of sport-specific rules at all.
Should this controversy end up in court, we can only hope that Title IX’s guarantee of sex-based equal opportunity survives.
Transgender swimmer Lia Thomas, center, begins her leg of the hundred yard freestyle medley, during a meet with Harvard on Saturday, Jan. 22, 2022, at at Harvard University
But, given the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County that employment discrimination on the basis of gender identity is a form of ‘discrimination on the basis of sex,’ that outcome is far from clear.
That is why Congress must act now to affirm Title IX and explicitly guarantee equal athletic opportunities for biological females.
Does this mean that transgender athletes can never be included?
Of course not. There are many possible accommodations:
– Perhaps transwomen can be practice players on women’s teams – many male athletes already are.
– Or maybe all athletes who identify as male (including transmen) and athletes who were born male (including transwomen) can compete on men’s teams.
– Or maybe there should be a third category for co-ed or open competition.
All of these options are reasonable ways to achieve transgender inclusion without denying equal opportunity to women.
Because, as the Ivy league swimmer’s mother said, ‘inclusivity cannot be an accepted code word for discrimination on the basis of sex.’
To be clear: proponents of protecting the female category in sport are not, as some have suggested, bigots who want to prevent 10-year-old kids from exercising or playing sports together irrespective of sex or gender identity.
We are proponents of fairness and equal opportunity for women in competitive sport – opportunity, not just to win, but, indeed, to play at all.
Lia Thomas has every right live a life free of unjust discrimination. But she does not have a right to be a competitive women’s swimmer.
The time is now to stop discrimination against female athletes by affirming Title IX’s guarantee of equal athletic opportunities for both sexes and by prohibiting all post-pubescent male bodies from competing on women’s teams.