The US Supreme Court (SCOTUS) very recently heard arguments in two Constitutional cases involving the right of transgender women athletes to compete in female sports. How the cases ended up in the Supreme Court, including the procedural and other legal details, whilst interesting and contextually relevant, require a lot of explanation beyond the scope of this article.
In short, two claimants challenged State laws that ban transgender women and girls from competing in events and teams aligned with their claimed gender identity rather than their biological sex. Lawyers for the two athletes argued that these State laws violated the Fourteenth Amendment of the US Constitution which enshrines equal protection to all US citizens under the laws of the country.
The cases were heard together and attracted significant mainstream media attention as well as much legal and political commentary. The potential implications go well beyond sport. As such, the cases attracted scores of amicus curiae briefs from interested persons and organisations. Amicus or ‘friends of the court’ briefs are a feature of US constitutional cases and common in public interest proceedings. The arguments raised on both sides of the issue were many and varied, both in their rationality, legal coherence and logic but make for interesting reading.
To give you a sense of some of the submissions made, take the Women’s Liberation Front (WLF) brief as an example.
The WLF is a self- described non- profit radical feminist organisation dedicated to the liberation of women by abolishing gender and sex discrimination. The WLF stated in its summary of argument that to allow ‘infiltration of males into female sports and spaces … protects [males] from acts of sexual violence … [and allows] males to use their access to sexually harass, intimidate, expose themselves to and rape women, including in locker rooms, sororities…’
Strong stuff indeed.
Another Amicus brief was lodged by ‘35 Athletic officials and coaches of female athletes’. These coaches and officials were drawn from a diverse range of team and individual sports. Their submission emphatically and categorically rejected the idea of sex or gender being anything other than biologically determined and noted that there are ‘scientifically indisputable and biological differences between males and females’. They stated that ‘females cannot reach their full competitive and athletic potential if they are required to compete against biological males’. They also cited various personal safety and other mental health risks associated with transgender females being allowed to compete with girls and women.
Many similar amicus briefs were filed by religious, sporting and educational bodies making substantially the same arguments, albeit with some distinguishing nuances.
There were also several amicus briefs filed in support of the two claimants. For example, three professors with hefty academic credentials argued that ‘according to the scientific consensus there are no clear sex-based differences in athletic performance before the onset of puberty … while some studies have found small differences between the performance of boys and girls, none of those studies controlled for social factors, such as greater social encouragement of athleticism in boys and greater opportunities for boys to play sports’. On this basis they go on to argue that transgender women who take puberty blockers at the onset of puberty and hormone therapy have no unfair athletic advantage and should be allowed to play in women’s sports.
Another brief was lodged by ‘Coaches, Teammates, Competitors and Allies of Transgender athletes’. Their submission argued that ‘the alleged harms caused by participation by transgender women in women sports are unfounded … [and] allowing transgender women to participate in women’s sports … neither poses safety concerns or gives transgender women and unfair advantage … to the contrary … the exclusion of transgender women would diminish women’s sports’. The brief struggles to go from bald assertion to argument but does give some selected anecdotes from athletes in various sports to purportedly make the good their general proposition.
If you have a spare 20 hours you can read all the briefs and the arguments made by the various lawyers, however, there are probably better ways to spend your time. If you believe that sex and gender are biologically determined and that females are generally, and for most sports, less athletically capable than men, at least in absolute terms, you can read many of the submissions very quickly. An unwarranted level of detail was contained in these briefs on what should ultimately be regarded as a commonly accepted and uncontroversial matter that men are generally bigger, stronger, and faster than women and some contained confusing semiotic ramblings about biological versus identified gender.
The fact that the SCOTUS was asked to wade through pages of pseudo-scientific debate about these matters says something about where we are at as a society.
There are many ways to come at the question of transgender athletes, and legitimate issues about the welfare of transgender people do arise, but the legal and constitutional controversy at stake is fundamentally whether the laws of the land should compel sporting bodies and educational facilities to allow transgender athletes to compete against women, or whether sporting bodies and educational institutions should be allowed to make their own decisions to exclude transgender participation.
In the US, for constitutional reasons, the rules need to apply sui generis or universally. The test of a good law or rule is whether it’s fair in the eyes of a sizeable majority of citizens, predictable, clear, and readily enforceable (a matter to keep in mind in the context of the proposed new Commonwealth hate and gun laws). Laws and rules that require an assessment of a person’s medical history to be made to determine whether any particular athlete has an unfair physical advantage and which cast immediate doubt on the result of any sporting contest won’t meet these criteria.
Humans are an incredibly diverse species, much more so than most other animals as to size height and weight. We are, and always will be, sexually dimorphic. Some of the physical differences between us are innate and many are based on biological sex. Only an idiot or misguided idealogue would say otherwise. Some differences are statistically correlated to race and hereditary factors and to other physiological differences that cannot be entirely overcome by training, athletic encouragement, coaching, and other interventions. The question is which of these fundamental human differences should guide participation in sporting activities. Gender has forever, and until now, universally been regarded as an acceptable participation category.
In sport, unlike some other areas of human endeavour, there are ‘winners and losers’ and usually maximum team numbers, meaning there is a risk that a transgender person (almost invariably a transgender female as transgender males never seem to compete in high-level or elite women’s sport) will take a medal or a team place at the expense of a biological women.
The betting is that the currently conservative leaning SCOTUS will uphold the State laws banning transgender athletes from female sports teams and events.
It has been reported that the claimants sought to discontinue their cases mid-trial as a possible sign of where the outcome was heading. In coming at the issue, there is a need to cut through a lot of the emotion, politics and broader social issues and look at the issue from the perspective of a lawmaker and keep in mind the fundamental precept that justice is about achieving the best result for the maximum number of people. Whilst laws need to protect minorities and the weak and powerless, it should do so at the expense of general fairness and equity or defy common sense and be made to look silly.
In the three hours of oral argument which is usually reserved for the most critical of questions and discussion, the conservative judges raised concerns about imposing a universal rule given the ongoing controversy about the impact of puberty blockers and hormone therapy received by transgender girls. The more liberal judges were keen to explore the impacts on transgender athletes of being forced to play sports with the sex they don’t identify with.
Justice Kavanaugh showed a good degree of cut through when he observed that sports are a ‘kind of zero sum game for a lot of teams’. If a transgender athlete knocks a female out of the team or wins a medal he said ‘those things matter to people, big time’. This echoes Justice Clarence Thomas’ comments from a 2024 case when he asked whether there is any difference between what the transgender athletes are seeking and an unsuccessful and opportunistic male athlete who decides he wants to identify as female to play against women and have a shot at success. For the law to work properly it needs to cater for this possibility (which has proven to be real rather than hypothetical).
The argument raised by some of lawyers is that a special category of transgender athletes who have had puberty blockers and hormone treatment and who are deemed to have no chance of unfairly winning a contest or of bumping a capable female from a team should be allowed to compete. But what about a ‘normal’ male who merely identifies as female. Should they be allowed to compete? To seek to devise eligibility distinctions or to force organisations to allow both categories of athlete to participate is a completely and hopelessly unworkable legislative solution. What about everything else that goes with sport such as sharing change rooms and fairness, team morale, and merit?
In these circumstances, the law should use the basic definable characteristic of biological sex as the only rational approach for participation eligibility. If a local or recreational sporting organisation wants to have an open non-gendered approach to its sport and let all comers compete that’s fine also as long as the choice is with the athlete, and it’s not applied for high-level sport and pinnacle competitions where participation is limited to the elite and the number of athletes inherently limited.
Andrew Christopher is a lawyer and writer
