Title IX has evolved from prohibiting sex discrimination in sports to perpetuating it among LGBTQ+ athletes.
In many ways, sports are a performative proving ground for strength. Within this context, discriminatory and exclusionary efforts make sense, as they stem from efforts to preserve the symbol of strength that sports stand for by excluding those who are either perceived as “weak” or as a “threat” to the norms in sports.
The existence of Title IX demonstrates and validates the need for protections against discrimination in athletics, especially against discrimination on the basis of sex. Although society has made strides toward inclusion and anti-discrimination in sports, most statutory protections and policies do not include protections for LGBTQ+ athletes, especially for transgender athletes. In fact, many statutory protections—namely Title IX—are being weaponized against the inclusion of trans athletes and have been used as an excuse to perpetuate discrimination on the basis of sex in sports.
Currently, 140 bills in state legislatures across the country target transgender kids—and the number continues to increase. Many of these bills are focused on the participation of transgender athletes in sports. These anti-trans bills that seek to exclude athletes, specifically young athletes, on the basis of their gender identity, violate both Title IX and Title VII’s prohibition of discrimination on the basis of sex, including sex stereotyping.
Some of these legislative efforts to bar transgender athletes from sports have taken the policing of non-conforming bodies even further by requiring some athletes to submit, as a condition of their participation in sports, to invasive examinations, such as DNA analysis, hormone level monitoring, or even an inspection of a student athlete’s reproductive anatomy.
The drafters of these bills seem particularly concerned with excluding trans women from sports, which proponents of these bills claim “protects women’s sports.” According to these proponents, Title IX justifies the exclusion of trans women from sports because trans women are biologically male and therefore taking away opportunities from women and girls that Title IX was intended to protect. The drafters of these bills aim to codify the policing of bodies that do not conform to heteronormative, hypermasculine understandings of gender that are defined and protected by sports culture.
These bills also help perpetuate sex stereotyping—which the U.S. Supreme Court held to be impermissible discrimination on the basis of sex and President Joseph R. Biden recognized as such in Executive Order 13,988. Some federal agencies have taken similar positions. For example, earlier this month, the Department of Education issued a notice that it would enforce Title IX protections to include transgender students. Similarly, the Department of Justice also filed a recent statement of interest in B.P.J. v. West Virginia that banning transgender girls from participating in girls’ sports is a violation of both Title IX and the Fourteenth Amendment.
Title IX was established to overcome the hypermasculinity of sports by offering access and opportunities for women and girls. In many ways, however, Title IX can enforce prevailing views of masculinity in sports by operating on the assumption that women are in some form “weaker” than men and that sex-segregated teams—as opposed to co-ed teams—are necessary to protect women. In fact, Deborah Brake, a professor at the University of Pittsburg School of Law, argues that “separating women from men in athletic competition sends the message that men are better athletes” because gender-blind selection “would leave female athletes with fewer opportunities because they cannot hold their own against male athletes.”
Furthermore, gender separation in sports teams reinforces further masculinization of participants within sports, which in turn provides space for men to construct and prove their masculinity to other men. Title IX also leaves “intact a structure in which women’s sports are too often marginalized as secondary to men’s games, a poor stepsister to the real varsity programs.”
The preoccupation in sports to ensure hypermasculinity’s dominance has resulted in frequent sex stereotyping to enforce conformity that does not “threaten” dominant notions of masculinity. In addition, it is exactly this preoccupation that “re-creates social gender divisions and can exaggerate sexism, with the message that biological sex … defines athleticism.”
The very framework of Title IX and the culture of sex separation in sports lends itself to rampant sex stereotyping to guard sports’ prized masculinity. These perceived threats come in many different forms—from the presence of “aggressive” female athletes to any trait that is perceived as “feminizing” in male athletes.
The heteronormative and hypermasculine structure of sports seeks to prevent any threat to masculinity by ensuring that female athletes are sufficiently feminine and benign. Bills purporting to “protect women’s sports” are simply attempting to bar trans women from women’s sports because they are not “sufficiently female.” In addition, these bills suggest that because trans women are assigned as male at birth, they are not “real” women and are therefore a threat to “real” women. This assumption is in direct opposition to the Supreme Court’s decision in Bostock v. Clayton County, which held discrimination against transgender individuals violated federal civil rights law.
This policing of athletes’ bodies and gender is not a new phenomenon in the sports world. For example, disdain shown toward Serena Williams’ muscularity demonstrates the continued policing of athletes’ bodies that do not conform with gender stereotypes. In 2014, the head of the Russian Tennis Federation, Shamil Tarpischev, reportedly referred to Serena and Venus Williams as the “Williams brothers” and commented that “it’s scary when you really look at them.” The disdain Williams experienced is colored with fear of the perceived “threat” a nonconforming body has to masculinity—and in Serena’s case, this fear is demonstrated blatantly and often.
Similarly, in 2015, I began chasing my dream of playing golf professionally at the highest level. Two years later, however, I had to take a step back from the game because of the constant pressure I felt to conform to pressure that said my queerness, my South Asian-ness, and my presentation of womanhood were not acceptable. No matter how good I was at my sport, my non-conformity meant that I could not play without the pressure to conform or to be palatable or acceptable to the dominant heteronormative and hypermasculine structure of golf. In light of this experience, I focused my pain in fighting for and becoming an advocate for LGBTQ+-inclusive policies in sports and decided to pursue a law degree to advocate in defense of trans and queer athletes.
These exclusionary efforts and the scrutiny on athletes such as Serena Williams, Caster Semenya, and Dutee Chand share a common thread: the requirement that athletes conform to the hetero-masculine framework by either changing their presentation or undergoing invasive procedures or therapies to ensure that they no longer pose a “threat” to masculinity.
The anti-trans bills introduced all over the country, however, stand for more than just violations of an established statutory framework. They are sending the message that no matter how good you are, and no matter how much you love your sport, if you do not conform, you cannot play. They are sending the message that kids cannot be kids and they cannot explore or celebrate their gender identity and play the sports they love—because they will be penalized for non-conformity. These bills purport themselves to be “protecting women’s sports” but they are directly discriminating against women—because trans women are women.
This essay is part of a 9-part series, entitled LGBTQ+ Rights and Regulation.
