In a rare example of bi-partisan agreement regarding women in sport, Democrat Rep. Tulsi Gabbard (Hawaii) and Republican Rep. Markwayne Mullin (Oklahoma) introduced the Protect Women’s Sport Act to the US House of Congress last Thursday (10th December). The purpose of the Bill is to ensure Title IX continues to fulfil its original purpose of ensuring equal opportunities for women and girls with regard to all federally-funded education, including sports.
Title IX, enacted in 1972, states that:
“no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
The increased participation of women and girls in sports – with all the attendant benefits in terms of personal development, teamwork and leadership skills – since the 1970s is testament to the success of Title IX.
As Gabbard reported in a recent video, before Title IX, 1 in every 27 girls played sport; today the figure is 2 in every 5.
In 2019, three female high school athletes invoked Title IX in a legal complaint against the Connecticut Interscholastic Athletics Conference (CIAC), which allowed biological males who identified as girls, to complete in the female events. In May 2020, the U.S. Education Department’s Office for Civil Rights ruled in their favour, contemplating withholding federal funds from states that refuse to uphold their obligations under Title IX. As Attorney General, William Barr, commented at the time, “single-sex athletics is rooted in the reality of biological differences between the sexes and should stay rooted in objective biological fact.”
This biological fact of male/female difference is incompatible with the claim of transgender activists that “transwomen are women” on the basis of a subjective “gender identity”.
If the Protect Women’s Sport Act will clarify the issue in US law, Australia needs to look again to its Sex Discrimination Act (Cth) (SDA). Like Title IX, Australia’s SDA was intended to “promote recognition and acceptance within the community of the principle of the equality of men and women.”
However, in 2013 the SDA was repurposed to work as an LGBT anti-discrimination act. The biological definitions of “woman” and “man” were removed with the purpose, according to the Explanatory Memorandum, of ensuring:
“that ‘man’ and ‘woman’ are not interpreted so narrowly as to exclude, for example, a transgender woman from accessing protections from discrimination on the basis of other attributes contained in the SDA”.
The protection of women’s sport in Australia now rests precariously on an exemption to the SDA, which allows sporting authorities to have regard to cases where “strength, stamina and physique” are relevant. Women’s sport must be blind to biological sex but it may, in particular cases, exclude individuals who are “too good”. Since excluding for excellence runs counter to the objectives of competitive sport, the 2013 amendments to the SDA has created an absurdity. At the same time, their practical effect has been to compromise the ability of sporting authorities to preserve single-sex sport for the benefit of women and girls.
Australia needs its own Protect Women’s Sports Act.