★ The Sports Examiner: Chronicling the key competitive, economic and political forces shaping elite sport and the Olympic Movement.★
★ To get the daily Sports Examiner Recap by e-mail: sign up here! ★
≡ U.S. SUPREME COURT TAKES TRANSGENDER CASES ≡
The United States Supreme Court granted certiorari Thursday in two cases involving the rights of transgender girls to play on girls sports teams on school:
● Little v. Hecox is an Idaho District Court case, challenging the state ban – enacted in 2020 – on transgender athletes, in this case at Boise State University, and requirements for sex testing. The law was blocked by the U.S. District Court and the injunction was affirmed by the U.S. Ninth Circuit Court of Appeals in August 2023. The State of Idaho asked for Supreme Court review.
● West Virginia v. B.P.J., an action by a teen transgender girl in middle school against the 2021 West Virginia law banning transgender athletic participation. A U.S. District Court granted a preliminary injunction against the law in 2021, then changed and agreed with the law. The law was stayed on appeal in February 2023 to the U.S. Fourth Circuit, now appealed by West Virginia to the Supreme Court.
Both cases were brought under the U.S. Constitution’s 14th Amendment Equal Protection Clause, and the West Virginia v. B.P.J. case brings in questions concerning possible violation of Title IX of the Education Amendments of 1972, which prohibiting discrimination in educational programs.
In June, the Supreme Court ruled, 6-3, in U.S. vs. Skrmetti (23-477) in favor of a Tennessee law banning “gender-affirming care” – puberty blockers and hormone treatments – for transgender minors. Specifically, the majority decided that the Tennessee law does not amount to sex discrimination under the 14th Amendment’s Equal Protection clause.
So, the Court will wade into the transgenders-in-sports question which has a reported 27 states with laws banning transgender girls from participating on girls sports teams. Many other states have laws in the opposite direction, including the State of California, which in 2013 adopted AB1266 regarding elementary and secondary schools, which included:
“A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.”
This is an important case and one which will have wide impact, even up to and including the Olympic Movement. However:
● It does not apply to professional sports.
● It does not apply to U.S. National Governing Bodies.
It will, however, have a wide-ranging effect on how transgender cases are looked at, especially with regard to age.
This is critical.
As an example, World Aquatics took the lead among Olympic sports federations, announcing in March 2023 its “Policy on Eligibility for the Men’s and Women’s Competition Categories,” which includes:
“Male-to-female transgender athletes (transgender women) and athletes with 46 XY [differences in sex development] whose legal gender and/or gender identity is female are eligible to compete in the women’s category in World Aquatics competitions and to set World Aquatics World Records in the women’s category in World Aquatics competitions and in other events recognised by World Aquatics if they can establish to World Aquatics’ comfortable satisfaction that they have not experienced any part of male puberty beyond Tanner Stage 2 or before age 12, whichever is later.”
Further:
“[T]he athlete must produce evidence establishing that:
“i. They have complete androgen insensitivity and therefore could not experience male puberty; or
“ii. They are androgen sensitive but had male puberty suppressed beginning at Tanner Stage 2 or before age 12, whichever is later, and they have since continuously maintained their testosterone levels in serum (or plasma) below 2.5 nmol/L.”
Now, however, a push is on for sex screening to determine whether an athlete should be able to compete in the female category. An August 2024 comment in the Scandinavian Journal of Medicine & Science in Sports explained:
“Today, 25 years later, there is ample evidence that biological sex is a crucial differentiator in ensuring fairness and influencing safety for female athletes. The participation of male-born competitors (e.g., transgender women) and athletes with certain XY DSDs in female sport is a growing concern. These athletes experience male-typical development from testes producing testosterone, with resultant physiological differences creating athletic advantages and safety risks [4–6], even in athletes with XY DSDs who might have been observed as female at birth.
“The ethical failures of sports federations in the past cannot be allowed to obstruct accessible solutions to such an important issue in women’s sport. The ethical framework that governs modern genetic testing is thorough and, importantly to overcome the shortcomings of the past, it emphasizes individual consent, confidentiality, and dignity. Current technology enables a screening procedure for ‘sports sex’ that involves a simple cheek swab to determine sex chromosomes. This screen can be performed reliably and quickly and should be done in duplicate to ensure reliable results.”
The use of a sex-screening test was also promoted in October 2024 by the United Nations Special Rapporteur on violence against women and girls, Reem Alsalem (JOR):
“In order to ensure, fairness, dignity and safety for all, including females – women and girls, females – we would need to maintain a female-only category in sports, while at the same time also having more ‘open’ categories for those wishing to play sports in categories that do not respond to the sex they were born into.
“That is one thing. The other thing is, as requested by many women and girls in sports, is to bring back – or actually not bring back – is to introduce sex screening, which as you know was discontinued in 1999.
“So that should be sex screening have become a lot more reliable now, cheap, can be administered in a confidential, dignified manner, should be introduced … as an element of – what was that called – eligibility, in female sports.”
It will be against this background that arguments will be made to the U.S. Supreme Court.
But they will also be made in the working group that new International Olympic Committee President Kirsty Coventry (ZIM) promised at her 26 June news conference:
“There was an overwhelming support … that we should protect the female category.
“And with that, we are going to … not revisit, that we’re going to set up a working group, made up of experts and International Federations. It was agreed by the members that the IOC should take a leading role in this, and that we should be the ones to bring together the experts, bring together the International Federations, and ensure that we find consensus.
“We understand that there will be differences, depending on the sport, but it was fully agreed that, as members and as the IOC, we should make the effort to place emphasis on the protection of the female category and that we should ensure that this is done in consensus with all the stakeholders.”
The IOC typically does not move swiftly in these matters, preferring lots of consultation and discussion. The Supreme Court, on the other hand, takes cases with a timeline clearly in mind, with a decision to be issued by the end of June in 2026.
Will Coventry’s own timetable now be shaped to allow the Supreme Court to have its say on the matter, as one more element to be considered in the IOC’s own policy?
¶
★ Receive our exclusive, weekday TSX Recap by e-mail by clicking here.
★ Sign up a friend to receive the TSX Recap by clicking here.
★ Please consider a donation here to keep this site going.
For our updated, 694-event International Sports Calendar for 2025 and beyond, by date and by sport, click here!
