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 … ” —Title IX

Title IX, the legal framework that made possible enormous growth in women’s sports, may be the very policy used to undermine its gains.

“I would not be here [on the track and cross-country teams at Idaho State University] without Title IX,” Mary Kate Marshall shared with me in an interview. “It has given me the opportunity to get a scholarship to compete on the team and for me to have a fair playing field competing against other women. I train hard every day with my teammates and my teammates train hard, and so it gives us equal play and opportunities to succeed in our sports.”

But Marshall, who lost to June Eastwood, a male-born athlete who now competes on the University of Montana's women's team, at the Big Sky Indoor Track and Field Championships in February, is now seeing the downsides of what Title IX is being cited to defend.

“It’s very deflating to see a biological male taking spots and taking the spotlight from biological women who are working probably harder than they are to get where they’re at,” Marshall said. For Marshall, “it’s had a huge impact [on me] knowing that people aren’t looking at the science of things and aren’t understanding that this isn’t fair to the biological women competing in sports.”

Marshall and Madison Kenyon, track athletes at Idaho State University, have filed a motion in federal district court in support of Idaho’s Fairness in Women’s Sports Act, which requires men and women to play on sports teams by their biological sex, not gender identity. That law is being challenged by the American Civil Liberties Union on behalf of Boise State University student Lindsay Hecox and an unnamed student at Boise High School. They argue that the law is unconstitutional and violates Title IX because Hecox and the anonymous student identify as women. Under the NCAA’s guidelines, Hecox is eligible to join a women’s sports team on the condition of receiving hormone therapy for one calendar year.

“This isn’t hypothetical,” said Doreen Denny, vice president of government relations at Concerned Women for America, the nation’s largest public policy women’s organization. “If laws change in America we will be in an entirely different place, and women are the ones who are going to lose.”

Five years before Richard Nixon signed Title IX into law in 1972, Kathrine Switzer ran the Boston Marathon officially as a registered competitor, the only female in the race. After race manager Jock Semple assaulted Switzer, her boyfriend punched him, and she completed the 26.2 miles. Five years later, in 1972—the first year the Boston Marathon held a woman’s race—Title IX was enacted. Women had to fight—literally—for their right to compete, in contrast with men who enjoyed much more liberal sports opportunities.

Now, male-born athletes are entering women’s sports as transwomen, and some female-born athletes are losing hard-fought opportunities as a result.

Alanna Smith, a junior at Danbury High School in Connecticut, and the families of two other Connecticut high school track athletes filed a federal lawsuit in February against the Connecticut Interscholastic Athletics Conference for allowing males to compete against females in sports.

“I do think there is a definite possibility [the case will go to the Supreme Court] and that will happen if we have circuit courts around the nation [deciding] in different ways,” said Roger Brooks, senior counsel at Alliance Defending Freedom, who is representing Smith and the two other female athletes. “We’d love to win at every circuit right off the bat in which case the Supreme Court probably never will take it; but life is complicated and the Supreme Court is all we have ultimately.”

In Smith’s sport, Terry Miller and Andraya Yearwood, two biologically born men who identified as women, placed first and second in the women’s 400-meter race at the 2019 Connecticut CIAC Outdoor State Championships. Smith, a freshman, placed third with a time of 55.56 seconds.

Selina Soule first challenged the CIAC’s rule following her loss to the same former male junior varsity athletes—Miller and Yearwood—in the 55-meter-dash at the 2019 CIAC Indoor State Championships. Soule, a freshman pursuing track and field at the College of Charleston, inspired Smith, who is also daughter of former MLB pitcher Lee Smith, to follow suit.

“My freshman year of high school I realized that there were athletes running who had super fast times compared to what time girls are usually running,” Smith told me in an interview. “It wasn’t until I got to states and regionals that I ran against the athletes, and that’s when my mom told me what Selina was doing and how she was standing up for change to be made.”

“At first, I didn’t want to do that because I was shy,” Smith said. “Then I realized it was really unfair to me and all the other biological girls who were running so I decided to join Selina and stand up to try to keep our sport fair.”

Connecticut is one of 18 states and the District of Columbia that allows high school students to compete in accordance with their gender identity rather than their biological sex at birth. If a male-born athlete self-identifies as a woman, that athlete may compete against women without medical intervention. Combined, Miller and Yearwood took 15 women’s state titles from 2017 to 2019.

“This reality is discrimination against girls that directly violates the requirements of Title IX,” the complaint to the U.S. District Court of Connecticut states. “Because schools are permitting males to compete as girls and women, girls and women are losing competitive opportunities. To American girls—those born with XX chromosomes—the message is, ‘Give up. You can’t win.’”

“It saddens me when a young person doesn’t feel that they have any agency, or thinks I don’t have a chance,” said Denny. “I got a call from a mother in Georgia. She said, ‘If this is the way it’s going to be, what’s the point [in my daughter competing at all]?’”

The difficulty of where to draw the line

Even Joanna Harper, a medical physicist who served as an adviser to the International Olympic Committee on transgender issues and who ran a 2:23 marathon time as a man prior to transitioning to a woman, does not agree with the Connecticut law.

“I don’t think you should be allowing trans girls to be winning high school state champions until they go on hormone therapy,” Harper said. “I would not have allowed that. I would have allowed them to compete in high school girls’ sports. I would even allow them to make it to the state meet. But I wouldn’t allow them to win state championships.”

“High school sports aren’t the Olympics,” Harper added. “Most people want to play high school sports, but it’s not the all-consuming passion as at higher levels.”

The consequence of saying “let them compete, no harm, no foul” goes beyond high school sports, however. Miller and Yearwood took the two spots that would have enabled Soule to advance to the New England Regional Championships and display her talents to college coaches who recruit under Title IX. While Soule is pursuing track and field as a freshman at the College of Charleston, she missed an opportunity to improve her time at that regional meet.

Even if two extra spots were given to Soule and another female to compete in the regional meet, being trounced in races by athletes with biological advantages sends a message to the female athletes who played by the rules that they lost to male-born athletes, dwarfing what are harder-earned scores for female-born athletes.

Craig Telfer, who was a mid-level Division II track athlete on the men’s team at Franklin Pierce University in New Hampshire, won the top prize in the women’s 400-meter hurdles by the name of CeCe Telfer” at the 2019 NCAA Division II Outdoor Track and Field Championships.

“The female athletes at Franklin Pierce University played by the rules,” said Denny. “All those girls that would’ve had a place on the podium didn’t get a spot,” Denny said. “That’s what’s unfair. That’s the injustice.”

Acknowledging male-born advantages in sports

The NCAA requires men to undergo testosterone suppression treatment for one calendar year prior to competing on the women’s team without changing it to a “mixed team status.” But that’s the only effort made toward leveling the playing field between male- and female-born athletes. The NCAA does not specify how many nanomoles per liter of treatment male-born athletes must have to compete, nor do they require men to undergo anatomical surgery.

There seems to be unequal conditions not only for female-born athletes competing against male-born ones, but also inequality within the trans community’s male and female teams. According to the NCAA guidelines, female-born athletes receiving testosterone to compete on the men’s team cannot return to the women’s team without calling it a mixed team. This is where things start to make less sense, when a male-born athlete can join a women’s team while keeping the “women’s team” category, but a trans male athlete (that is, a female-born athlete who’s transitioned to male with testosterone treatment) can’t join a women’s team without the team category being changed to “mixed.” 

In all cases, female-born athletes have the greatest disadvantage.

“Have you heard of any cases—females transitioning to become men—and are they vying for scholarships at colleges? Probably not because they’re not really going to be in the category of outstanding athlete for certain things,” Denny said. The NCAA does not require a timeframe for testosterone treatment for women to compete on men’s teams.

While the NCAA is attempting to require its trans women’s and men’s teammates to display each genders’ traditional levels of testosterone, some scientists say that those hormones alone are not what give male-born athletes an advantage. Tommy Lundberg, who has a PhD in Sports Science from Mid Sweden University and teaches at the Karolinska Institute, is skeptical of the NCAA’s rules attempting to level the playing field by requiring trans women athletes to receive testosterone-reducing treatment. “There is no data to show that 12 months is a breaking point,” Lundberg told me in an interview.

Lundberg was invited to London by World Rugby to discuss transgender issues. After the conference, he wrote a paper with Emma Hilton—also at the meeting—outlining their scientific findings. Their paper focuses specifically on muscle mass and strength. They presented the data to World Rugby, which recently decided to not allow transgender athletes to participate in the women’s category.

“After one year [of hormone therapy], muscle mass decreases 5 percent in trans women [biological men] and they lose muscle strength,” Lundberg says. “This is a consistent finding in other studies that measure lean body mass. Our conclusion is that a large proportion of the inherited advantages of being a biological male who has undergone male puberty with testosterone spikes—a large proportion of that advantage remains.”

“Is it likely a transgender woman [biological male] has an advantage of having gone through male puberty? The scientific answer is ‘yes,’” Lundberg says. “There is no evidence that advantage would be completely eliminated [by testosterone reducing treatment]. It can be reduced, but it’s not eliminated from what we know so far in data.”

Further, there are certain physical attributes males have that give them an advantage, regardless of hormone treatments. “Ultimately it will depend on the sport, but I see many more sports where there would be an advantage rather than a disadvantage to retain the typical male anatomy, size, and density of bone,” Lundberg says.

Doping by any other name

While higher testosterone puts male-born athletes at an advantage over female-born athletes, sports federations that would usually discourage hormone treatments out of concern for doping, are now legislating it.

“If you dope yourself with testosterone as a woman you have increased performance, so . . . it’s considered unfair,” Lundberg says. But he distinguishes treatments for cheating from treatments for identity. “Transgender women undergo therapy because they identify as women rather than a man. You can’t draw a parallel that they’re trying to cheat somehow. It’s that this is how they feel, and there’s therapy out there to confirm their preferred gender. But obviously the IOC states themselves in policy documents that a level playing field—an overriding sporting objective—is paramount in importance, a cornerstone and core value of sports. It becomes a problem if trans women have an inherent advantage of having gone through male puberty.”

For sharing the data on the advantages of male-born puberty on athletic performance, Lundberg said he has been called “transphobic” and a “TERF” (trans-exclusionary radical feminist).

“I have tried to refrain from saying too much about my personal opinions because I’m first and foremost a scientist and . . . I think it’s not really my job to say what different sports should do because their primary duty is to decide about the rules in their sport, and if one sport wants to include trans people no matter what, it’s okay. It’s like how I can’t tell other parents how to raise their children because that’s their duties and not mine; but [there’s more I can say] when there are clear misunderstandings of science.”

The International Olympic Committee dropped the requirement for surgery and went to a testosterone-based regulation for transgender athletes. They allowed transgender athletes to compete for the first time in the 2016 Rio Olympics. World Athletics and the NCAA had already done so. “It’s an institutional or systemic issue that’s being created now because you have IOC and NCAA setting policy and schools following along policies to seem like they are in line and not outside of the cultural drive here, and maybe feeling that they are required to in some regard,” Denny said. “Idaho tried to do the opposite.”

The future of women’s sports

Idaho State Representative Barbara Ehardt is the writer of the Fairness in Women’s Sports Act, which Idaho State University track athletes Marshall and Kenyon are filing a motion in support of, after losing to trans athletes. Prior to her work in the legislature, Ehardt coached women’s basketball at the University of California, Santa Barbara; California State University, Fullerton; Brigham Young University; and Washington State University. She said that by identifying as a woman, Eastwood could be able to compete at the University of Montana for several more years. “I look at what happened in my own state when June Eastwood who had run as John for three years at University of Montana decided to run as a female at the Big Sky Championship for the mile run, Ehardt says, “[Eastwood] absolutely annihilated our women—absolutely annihilated them—that’s just wrong.”

“There’s really nothing that would keep June from applying to run for three more years because June ran as a man for three and only as a woman for one,” Ehardt said.

More than 1.4 million adults in the United States identifying as transgender, according to UCLA’s Williams Institute School of Law. “When we’re looking at this and saying it’s only one or two [transgender athletes], no, the numbers are growing and the displacement will only increase especially as there are collegiate financial opportunities for those athletes to have school paid for and to potentially take the very spots that used to be reserved for girls and women,” Ehardt says.

Not only are female-born athletes losing spots, trans women athletes may become what sports teams are looking for, if they want to beat the competition. “It doesn’t take long before the rest of the conference realizes that if they’re going to be competitive they too need that height or that competitive edge that you get by, for example, recruiting foreign players; if you’re not able to land the top-notch athletes at your school . . . that same philosophy applies,” Ehardt said.

“If June had done this as a freshman and dominated like June did—every other conference, every other school in that conference would absolutely be forced to go find someone to be able to match the abilities that someone such as June would bring to the table,” Ehardt said. “If you have a biological male playing collegiately, . . . watch the trend. Every team will essentially be requested to go and find someone to combat the advantages that biological male brought to the team they were playing.”

Acknowledging sex differences

When asked if biological men transitioning to women have advantages over biological women, Christian Nunes, the president of the National Organization for Women (NOW), a nonprofit dedicated to issues pivotal in the creation of Title IX, said to me in an interview, “I have not done any research in this but from a few studies I have heard of they’re saying there are not many advantages, they don’t face many advantages over cisgender people in the world of sports, meaning men or women. But I have not done much research over this. I know that has been some of the arguments that they’ve made but I can’t really speak much for that except that I don’t believe that’s justification to discriminate.”

Nunes adds, “It’s important that we remember we are here to protect our students, protect our athletes, to be inclusive and not exclusive and not discriminate. I encourage people to understand that if you support discrimination [in] one area you have to realize eventually that discrimination will circle around to another area, another group, and so we can’t be in silo movements. If we’re going to be activists we have to be activists that will fight for all and not just decide that because it does not directly affect me I choose not to stand up. We have to fight for everyone.”

But Brooks from Alliance Defending Freedom says this thinking doesn’t work as neatly when it comes to fairness for women in sports. “People want to be nice; they want to be accepting; they want to be tolerant,” he says. “What gets missed are the biological realities that are the very reason that we have separate men’s and women’s sports in the first place. We don’t have them just because men and women don’t like each other—they don’t want to be in the same room together—no, it’s because of biological realities and that just kind of got lost in the conversation and lost in the decision-making process, both in this [ADF] case and in the broader discussion, we see biology coming back in where it really needs to be as part of the discussion and decisions.”

“This will destroy athletics for women,” Ehardt says. “It will be called ‘athletics’ in general, one category dominated by males, if we continue down this path. That’s what Title IX was for—to prevent this from happening. Title IX provided the opportunity for girls and women not just in sports but educational opportunities, and it’s been an important component to move forward and compete and learn and experience—the same things male counterparts have had all their lives.”

The ACLU of Idaho, NCAA, Human Rights Campaign, and Andraya Yearwood did not respond for comment.