In a landmark ruling last week, a US federal court has rejected the Biden administration’s bid to redefine ‘sex’ to include ‘sexual orientation’ and ‘gender identity’ in federal law.

The ruling protects both female athletes from being forced to compete against biological males, and health professionals from being forced to perform harmful gender-transitioning treatments or surgeries.

The key statute under consideration by the court was Title IX, a US federal law that was enacted as part of the Education Amendments of 1972, and prohibits sex-based discrimination in educational institutions that receive funding from the federal government.

‘Title IX expressly allows sex distinctions and sometimes even requires them to promote equal opportunity,’ wrote the court in its judgment. ‘Defendants’ theory actively ‘undermine[s] one of [Title IX’s] major achievements, giving young women an equal opportunity to participate in sports’.

The court added:

‘Reinterpretation of Title IX…imperils the very opportunities for women Title IX was designed to promote and protect – categorically forcing biological women to compete against biological men.

‘Title IX’s protections center on differences between the two biological sexes – not [sexual orientation and gender identity] status.’

Applauding the court’s ruling, Alliance Defending Freedom Legal Counsel Rachel Csutoros said:

‘Female athletes deserve to compete on a fair and level playing field with other women, and federal law protects equal opportunity for women to excel in sports.

‘We’re pleased the court ruled to not only protect female athletes, but also doctors who should never be forced to perform controversial and medically dangerous procedures that violate their conscience and religious beliefs. In its opinion, the court rightly stopped the Biden administration’s gross overreach of its authority and political agenda.’

Save Women’s Sports Australasia co-founder and lawyer Katherine Deves called the ruling a ‘stunning victory for American women, doctors, and patients’.

Meanwhile in Australia, ‘sexual orientation’ and ‘gender identity’ were added as grounds for discrimination to the Sex Discrimination Act (SDA) back in 2013. The biological definitions of ‘man’ and ‘woman’ were also taken out, removing protections for women’s sport (and other protections for women) along with it.

The SDA no longer adequately protects women’s sex-based rights, because it no longer recognises women as a sex-based category. As a result, it is now generally unlawful to differentiate between women and males who identify as women (transwomen) when it comes to single-sex sports, prisons, bathrooms, domestic violence refuges, and other single-sex spaces and services.

And as if women and girls needed any further undermining in this area, last week, Ian Thorpe, one of Australia’s most successful male Olympic swimmers, came out against world swimming body FINA’s decision to ensure fairness for female athletes by restricting trans-identifying males from competing in women’s swimming competitions.

Thorpe’s stance comes in spite of Australian female swimming greats – including Dawn Fraser, Emma McKeon, Emily Seebohm, and Cate Campbell – speaking out strongly in support of reform to protect women’s sport.

‘This is a very complicated issue, I can’t deny that, and I am personally opposed to the position FINA has taken on this,’ said Thorpe. ‘I am for fairness in sport, but I’m also for equality in sport. And in this instance, they’ve actually got it wrong.’

According to The Guardian, ‘The five-time Olympic champion called FINA’s decision a “temporary solution” that failed to consider the implications it could have on the gender-diverse community.’

Never mind the implications allowing males to compete in female sports has for women and girls.

In response, Deves tweeted in separate posts:

‘Not complicated @IanThorpe. Women & girls have the right to a female only sports competition. Only complicated if you think the inclusion of males is priority. CANNOT have both fair competition & inclusion, you have to pick one.’

‘If @IanThorpe had to compete against a fellow male who was doping, 8-10% performance advantage, he would not be an Olympian. But women are expected to tolerate a male with a 10-12% performance advantage by virtue of his sex? A man with suppressed testosterone is not a woman.’

‘No one can “determine” their sex @IanThorpe. Sex is immutable, objective & observable, it is determined at conception & observed in utero or at birth, & then recorded. And one man taking the place of a woman, is one too many. This is common sense – majority of Aussies agree.’

We couldn’t agree more with Deves. Everyone should have an opportunity to play sport, but we need to make sure we have a fair playing field. Biological sex differences matter in sport, and ignoring them negates the very purpose of establishing a separate female sporting category, namely, to provide a forum in which women and girls enjoy a sporting chance of success.

Like Senator Claire Chandler proposed in her Save Women’s Sport Bill earlier this year, we too urge the federal government to step up and legislate protections for women’s single-sex sport. This includes putting the biological definitions of ‘woman’ and ‘man’ back in the SDA in order to restore protections for women’s sport and the sex-based rights of women and girls more broadly.

We also urge male athletes like Thorpe, to listen to their female peers, and to support the many female athletes both in Australia and globally, who have spoken out in favour of common sense protections for women’s single-sex sport.

Rachael Wong is the CEO of Women’s Forum Australia

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