SII Focus 1st April 2020

Idaho bans transgender students from competing in female sport

Idaho has become the first US State to ban transgender student athletes from competing in female sports, after Governor Brad Little passed the Fairness in Women’s Sports Act (PDF below) on 30 March. The Act mandates that athletes competing for teams that fall under the jurisdiction of Idaho educational establishments must be designated as either male or female, and that female teams and sports ‘shall not be open to students of the male sex’.

If a student’s sex is disputed, they must prove their sex by providing a physician’s statement indicating their sex based on their ‘internal and external reproductive anatomy’, their ‘normal endogenously produced levels of testosterone’, and ‘analysis of the student’s genetic make up’. The Act also allows students who are deprived of athletic opportunities due to violations of the Act to seek damages from the educational institution concerned. Likewise, students who suffer ‘direct or indirect harm’, or who suffer ‘retaliation or other adverse action’ due to violations of the Act – or due to reporting violations of the Act – can also seek damages.

The rationale behind the Act is that men hold a physiological advantage over women, and therefore allowing transgender athletes to compete in female student sports would be unfair. In support of that proposition, the Act cites an article in Psychology Today; two papers by Professor Doriane Coleman – Sex in Sport, and Comparing Athletic Performances: The Best Elite Women to Boys and Men; a 2010 paper, ‘Women and men in sport performance: The gender gap has not evolved since 1983’; and a 2019 paper from the Karolinska Institutet, ‘Muscle Strength, Size and Composition following 12 months of Gender Affirming Treatment in Transgender Individuals: Retained Advantage for the Transwomen’.

It argues that this final paper supports the idea that the benefits offered by higher levels of endogenous testosterone typically seen in male athletes are not diminished through use of puberty blockers and cross-sex hormones after 12 months of therapy. It does not study the longer term impact of such methods. Some athletes have reported not only a drop in performance, but health issues after reducing their endogenous testosterone, as discussed in this article. But such issues appear to take longer than 12 months to develop.

Opposition

Irrespective of this, the Act has faced criticism for failing to take into account that student sport and elite sport may not prioritise a ‘level playing field’ in the same way. Nancy Hogshead-Makar and Coleman, whose two papers are used to support the rationale behind the legislation, urged Brian Wonderlich, General Counsel of the State of Idaho, to veto the Bill. 

‘It fails because it doesn’t make an exception for trans girls and women who’ve never experienced male puberty and so haven’t developed the traits the classification was designed to exclude’, reads a 19 March letter (PDF below). ‘It fails because it doesn’t take into account the multiple goals of sport at different levels of play, which range from after-school clubs focused on participation, to elite competitions focused on college scholarships, podium spots, sponsorships, and immortality. HB 500 would prohibit even reasonable accommodations like the NCAA’s [National Collegiate Athletic Association] current testosterone rule, which allows trans women to compete with hormone suppression. Finally, anything more than a doctor’s certification of the athlete’s reproductive sex and ongoing testosterone levels is unnecessary scientifically and deeply intrusive.’

Coleman’s Sex in Sport paper was also used by World Athletics to support its Difference of Sex Development (DSD) Regulations when they were unsuccessfully challenged by Caster Semenya at the Court of Arbitration for Sport (CAS). World Athletics successfully argued that over time, the impact of testosterone on the XY karyotype from puberty onwards, combined with the right exercise and diet, creates a performance advantage in an XY individual that is not available to an XX individual.

“If we measure an individual’s circulating testosterone at any particular moment, we can’t tell if they’re faster or slower than the next person”, clarified Coleman. “But we can tell whether they’ve gone through male puberty and, if so, that they’ve retained the competitive advantages associated with that transition. Circulating testosterone is a snapshot or evidence of what your body has experienced throughout its lifetime. We know what male testosterone levels do in puberty, and we know what they do in the moment. And so we can say that they’re an accurate way of assessing whether you have the legacy and current advantages associated with those levels.”

Yet the Fairness in Women’s Sports Act goes further than that by locking out all transgender women from female student sport, including children, irrespective of whether they have undergone puberty or hold such a ‘legacy advantage’. It is understood that this is the reason why Coleman has opposed the use of her research to support the Act. 

The Act was also passed alongside another Act that prevents individuals from changing their gender on their birth certificates, which is argued is unconstitutional. Obviously, this second Act would make ascertaining a student’s sex to determine whether they are eligible for female sport much easier.

Sledgehammer to crack a nut

Nobody is arguing that transgender athletes should be allowed a free pass to compete in female sport. But a nuance that Idaho’s Act fails to recognise is that the advantage is not the same across all sports and if it does exist, develops post-puberty over time.

There are a number of studies which show a difference in strength/lean muscle mass/total muscle mass between XY karyotype (male) and XX karyotype (female) athletes. But the difference depends on the event. For example in weightlifting, the male Olympic Record (Total) in the 67kg category is currently 339kg. In female Olympic Records, this isn’t matched, even in the highest +87kg category. 

Weightlifting is an extreme example. In athletics, the performance difference between men and women is understood to be around 10% to 12% for running events, but higher for other athletics events. In sports such as sailing, shooting, horse riding, the gap is understood to be negligible. But all of these stated advantages concern elite sport, and not student sports.

As Hogshead-Makar and Coleman point out in their letter (above), the Act doesn’t take into account the differing goals of student sports. Elite sport can often hold a fanatical ‘win at all costs’ ethos. Citizenship, sportsmanship, teamwork, fun, and health are often sidelined, yet these form the key objectives of sports programmes at many educational establishments. 

By mandating that no transgender athletes may ever participate in female student sport, it does appear that the Idaho legislature is using a sledgehammer to crack a nut. It also serves as a warning that policy frameworks formulated at the international federation level, such as World Athletics’ ‘Consensus on establishing rules for transgender athletes’, can have unfortunate and unintended consequences.

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