Submit Your Questions for Our Podcast on Title IX & Public Comments

Confused about the Department of Education’s Title IX proposed rule changes on sport? Wondering what, exactly, the implications are for female athletes? Have questions about writing and submitting your public comment?

Post your questions in the comments below no later than Friday, May 5th noon Eastern time. 

Founder of the Notes on Feminism and the Gender Wars podcast, Elizabeth Hungerford, will record a show with Max Dashu and me, to answer your questions and discuss our thoughts about the proposed rule changes.

You can read the draft of our public comment below. (Yours need not be as long.)

The podcast will be published on Monday, May 8th, one week ahead of the deadline for public comments, May 15th.

This is your chance to tell the Dept of Education your thoughts on the importance of using sex related criteria when considering eligibility for sport. They are required to respond to all comments (although similar comments may be grouped together) before issuing their final rules. So, submit your questions, have a listen to our podcast, and let’s make the most of the Administration’s willingness, at last, to consider sex-related criteria when determining eligibility for sport!

Draft of the Proposed Rule Changes

Fact sheet on the proposed rule changes.

Articles we cite and will upload with our comments:

2021. Pike, Jon, Emma Hilton, and Leslie A. Howe. “Faster, Higher, Stronger: Biology, Fairness, and Transgender Athletes in Women’s Sports.” MacDonald-Laurier Institute. https://macdonaldlaurier.ca/wp-content/uploads/2022/03/Dec2021_Faster_higher_stronger_Pike_Hilton_Howe_PAPER_FWeb.pdf

2020. Hilton, Emma and Tommy Lundberg. “Transgender Women in the Female Category of Sport: Perspectives on Testosterone Suppression and Performance Advantage.” Sports Medicine. https://link.springer.com/article/10.1007/s40279-020-01389-3

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Image credit Women’s Sports Foundation

Draft of our Public Comment

We are a group of feminists who appreciate the opportunity to comment on proposed regulatory changes that impact female students’ right to fairness, safety, and equality. First, we would like to thank the Department of Education for validating the long standing legality of using sex-related eligibility criteria to achieve the important educational interests of fairness and safety in sports. By acknowledging that these interests may be served by the use of sex-related eligibility criteria other than gender identity, we also thank the Department for implicitly recognizing the harms suffered by female athletes as a result of some recipients’ policies¹ that allow male students with non-male gender identities to participate and compete on female teams. 

Our comment will be focused on female athletes because, while male students may complain about or be offended by the presence of a female student on their team, it is only female athletes who are harmed in the legal sense of safety and fairness by the use of gender identity to override all other sex-related criteria. 

In a recent review of biological differences affecting sports performance published in Sports Medicine², the authors explain:

[I]n sports where contact, collision or combat are important for gameplay, widely different physiological attributes may create safety and athlete welfare concerns, necessitating not only segregation of sport into male and female categories, but also, for example, into weight and age classes.

Risk of injury is heightened for female athletes when playing with or against male athletes, yet male athletes are not at similar risk of injury when playing with or against female athletes. This safety disparity is scientifically explainable by the effects of male physiological structure including but not limited to larger hearts, greater lung capacity, longer and stronger bones, more fast twitch muscle fibers, and testosterone driven puberty. By the same explanation, women and girls are more likely to lose competitive rank when forced to compete against male athletes on female teams; yet male athletes are not likely to lose rank when female athletes are allowed to compete on male teams. When we focus on female athletes, it quickly becomes clear that policies allowing gender identity to override sex do not equally impact male and female athletes. Such policies cause a disproportionate impact; they harm female athletes more in regard to both safety and fairness.

It is also clear that the Department is very interested in minimizing harm to students who assert a gender identity inconsistent with their biological sex. Students whose gender identity is inconsistent with their sex are specifically named as being harmed when sex-related criteria other than gender identity are used and for whom harm must be minimized. Yet there is nothing in the regulation that requires a recipient to minimize harm to female athletes nor states that female athletes experience more than de minimus harm when gender identity is allowed to override all other sex-related criteria to determine eligibility for participation in certain sports. This is not fair. The Department should be equally concerned with minimizing harm to female athletes.

We urge the Department to modify the proposed regulation to make clear that female athletes may be harmed when gender identity overrides all other sex-related criteria for eligibility to participate in certain sports and that recipients must minimize harm to female athletes when they adopt policies that allow gender identity to override all other sex-related criteria.

In a significant policy report about transwomen’s inclusion in women’s sports³, the authors note:

There is no basis for the claim that transwomen as a group should be prevented from playing sport. The question is whether there is a justification for excluding transwomen from the protected category of women’s sport. This is about rights within sport, as opposed to access to sport.

We further urge the Department to provide greater specificity about how to implement sex-related criteria other than gender identity that will satisfy the proposed regulation. The Department’s Notice of Proposed Rule Making, on page 22871, unhelpfully states:

These criteria could include, for example, a  requirement limiting or denying a student’s eligibility for a male or female team based on a sex  marker on an identification document, such as a birth certificate, passport, or driver’s license.  Criteria requiring physical examinations or medical testing or treatment related to a student’s sex  characteristics would also fall within the proposed regulation’s scope if the results of such  examinations or testing or requiring such treatment could be used to limit or deny a student’s  eligibility to participate consistent with their gender identity. Such criteria, like other sex-related  eligibility criteria, would have to adhere to the proposed regulation’s requirements, including the  requirement to minimize harms. 

It is not clear what, if any, proof of eligibility criteria would be acceptable to the Department and under what circumstances. 

Public schools are chronically underfunded by local jurisdictions and private schools depend on fundraising to survive. Recipients may not be able or willing to undertake expensive litigation to determine whether their eligibility policy using sex-related criteria other than gender identity will be accepted under the new proposal. In every case, litigation will divert resources from actual educational programs and should be avoided at nearly all costs. Particularly in edge cases, such as middle schools when students are experiencing the average onset of puberty, it is not fair to put the burden on recipients to test their policies at the unavoidable expense of litigation. Due to the way Title IX’s regulations have been structured–to permit the use of sex-related criteria other than gender identity but not to require it–the path of least resistance and legal risk would be to drop sex-related criteria other than gender identity altogether. But what of the inevitable harm suffered by female athletes, what of our right to safe and fair competition in certain sports, when most recipients are legally unable or unwilling to defend eligibility policies that use sex-related criteria, other than gender identity?

We urge the Department to take seriously its duty to minimize harm to female athletes, to ensure fairness in athletic competition, and to prioritize recipients’ ease of compliance when using sex-related criteria other than gender identity as necessary.

1. The Department should modify the proposed regulation to make clear that female athletes may be harmed when gender identity is the overriding criteria used to determine eligibility for participation in certain sports and that recipients must minimize harm to female athletes.

2. To ensure the proper balance of fairness, equality, and safety, and to minimize the foreseeable harms of litigation; the Department should amend the proposed regulation to specify which forms of proof or evidence recipients may require to establish sex-related eligibility for participation. 

3. Finally, the Department should recommend that recipients may achieve the important educational interests of safety and fairness for all student athletes regardless of sex and gender identity by designating one category as “open” with no sex-related proof of eligibility requirements and also maintaining a second “female” category with sex-related female proof of eligibility other than gender identity.

In conclusion, Title IX’s prohibition on sex discrimination was originally enacted to remedy the exclusion of women and girls from educational programs and opportunities enjoyed by boys and men–not the reverse. While people of all sexes can experience a gender variant identity, the Department has a duty to minimize harm to all students equally, including harm to female athletes. We urge the Department to amend the proposed regulation accordingly.

1. Many Title IX recipients defer to the eligibility policies of higher governing bodies such as the National Collegiate Athletic Association (NCAA) when dealing with transgender participation in sport. The NCAA may, in turn, defer to the policies of national governing bodies for elite sports such as USA Swimming. This is precisely what happened when, despite compliance with the eligibility criteria in effect at the time, Lia Thomas was able to outrank all female athletes in NCAA Division I competition as a participant of the University of Pennsylvania’s women’s swim team–yet Thomas did not rank competitively against male athletes while participating on the same university’s male swim team during the prior three swim seasons.

2.  Hilton, E.N., Lundberg, T.R. Transgender Women in the Female Category of Sport: Perspectives on Testosterone Suppression and Performance Advantage. Sports Med 51, 199–214 (2021). https://doi.org/10.1007/s40279-020-01389-3

3. 2021. Pike, Jon, Emma Hilton, and Leslie A. Howe. “Faster, Higher, Stronger: Biology, Fairness, and Transgender Athletes in Women’s Sports.” MacDonald-Laurier Institute. https://macdonaldlaurier.ca/wp-content/uploads/2022/03/Dec2021_Faster_higher_stronger_Pike_Hilton_Howe_PAPER_FWeb.pdf