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American exceptionalism
A similar debate is raging across the rich
world. World Rugby, which currently fol-
lows the International Olympic Committee
guidelines that allow transgender athletes
to compete in women’s events if their tes-
tosterone levels are below a certain level, is
considering banning trans women from
the women’s game. That is partly because
of fears that transgender women players
could injure their teammates.
Strikingly absent from the discussion
in America are women’s groups standing
on the women’s side of the issue. Instead,
many long-established women’s groups
have aligned themselves with the trans-
gender movement. “Transgender girls are
girls and transgender women are women,”
reads a statement from several rights
groups in Connecticut, including the state
chapter of Planned Parenthood. “They are
not and should not be referred to as boys or
men, biological or otherwise”.
Doriane Coleman, a law professor at
Duke University, observes that it is “ex-
tremely difficult” to get the support of any
civil-rights group for an agenda that does
not include trans women in its definition
of women. That is why the female athletes
in both Connecticut and Idaho are repre-
sented by the same conservative Christian
organisation, the Alliance Defending Free-
dom (
adf
). (Ms Coleman points out that
the
adf
also has first-class lawyers.) In
Britain, by contrast, the battle to preserve
women’s spaces, from lavatories to pri-
sons, is largely being fought by feminists.
The fact that progressives appear to
have largely ceded this issue to conserva-
tives reflects the way such issues have be-
come polarised in America. In many coun-
tries, those who suggest that the law
should not regard trans women as women
in all respects are denounced as trans-
phobic; in America, such attacks are partic-
ularly aggressive. Though polls suggest
that a majority of Americans believe that
trans women should not play in women’s
sports teams, this is a view that is rarely
heard publicly.
“Our discussion about this topic is in-
sane—you can’t talk about it at all,” says
Natasha Chart, a board member of Wom-
en’s Liberation Front, which describes it-
self as a “radical feminist organisation”.
“You face so much social opprobrium for
speaking out that people don’t want to
touch it.”
How will the courts adjudicate? A land-
mark ruling on
lgbt
rights by the Supreme
Court may offer a clue. In June, America’s
highest court ruled in
Bostock v Clayton
County
that gay, lesbian and transgender
people were protected under Title VII of the
Civil Rights Act, which bars discrimination
in employment because of sex. That has
raised the question of whether this reason-
ing could also be applied to Title IX.
Several lower courts have suggested it
could. In August the judge who issued a
temporary injunction on Idaho’s ban on
trans athletes in women’s teams, cited
Bos-
tock
. The same month, a federal appeals
court ruled that school policies that forbid
transgender students to use the lavatory of
their gender identity violate the law. That
judge said
Bostock
had guided his evalua-
tion of claims under Title IX, because Con-
gress had intended it and Title VII to be in-
terpreted similarly.
Yet in
Bostock
, the Supreme Court ex-
plicitly said it was ruling only on discrimi-
nation in employment; it was not attempt-
ing to address “bathrooms, locker rooms,
or anything else of the kind”. This qualifi-
cation suggested that the justices expect to
consider such questions in the future.
However the courts in Connecticut and
Idaho rule, the issue seems likely to end up
at the Supreme Court.
7
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