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Transgender Athlete Rights Are Human Rights

Before we start, for any trans folks reading this, we want to provide a warning that this article discusses transphobia and the current state of the U.S. political system. It’s unfortunate that most published content on trans people, this article included, is written primarily for cisgender people. Also, we recognize that this article is written primarily about trans women. Nonbinary people and trans men also face unique challenges surrounding sports that absolutely deserve to be addressed, and we don’t want those issues to be erased. We want to help change the conversation in the future. For now, please know that we see you, we are here for you, and you are loved.

On June 15, 2020, the Supreme Court decided the landmark case Bostock v. Clayton County, which expands some Civil Rights Act protections to LGBTQ individuals. That ruling sets in motion a hopeful future when discriminatory decisions and policies will face a steeper uphill climb to avoid being overturned as violations of statutorily—and constitutionally—protected rights, if they are not rescinded altogether. However, it’s clear that there is still so much more work to be done.

This article gets into what that work looks like related to inclusive policies for transgender, female runners, and why it is needed for human rights and fairness. But first, a step back. We just want to acknowledge that transgender athlete rights can be a difficult topic, and that we are all learning together. It’s relevant for running, sure. It also brings up feelings related to politics, justice and just about every other contentious topic you can think of. In that context, we have a quick request before we get into the nitty-gritty details.

Pause and clear your perspective, particularly if you have never learned about trans identities from trans people or resources we have recommended below. This article is not intended to say that being on one side or the other makes you a good or bad person.

Pause, with an open mind and heart. Pause and clear your perspective, particularly if you have never learned about trans identities from trans people or resources we have recommended below. This article is not intended to say that being on one side or the other makes you a good or bad person. These are new ideas for many people, and some may assume that historical modes of exclusion have more fact-based justification than they do in reality. We thank you for engaging with this topic, even if you don’t start (or end) with the same perspective we do.

But try to keep an open mind and empathetic heart. Remember that while you may consider this an academic or political discussion, for some of us, this topic is a fundamental part of our lives. The stakes here go far past the scoreboard or race clock, to the very essence of the identities and lives of trans athletes. And those identities and lives that will be affected by our collective decisions make inclusive transgender athlete rights a topic that is important for everyone.

A pattern of prejudice.

Although the Supreme Court recognized rights of transgender people in Bostock, the current Administration has been attempting to dismantle trans rights whenever possible. The recent attempt (that spurred us to write this article in the first place) was on May 28th, when a Letter of Impending Enforcement Action from the Department of Education to Connecticut became public. In the letter, the Administration argued that transgender girls’ (girls whose gender differs from their assigned gender at birth) participation in high-school athletics violates Title IX by claiming that it denies equal opportunity to cisgender girls (girls whose gender matches their assigned gender at birth). This letter is part of a string of policy decisions by the Administration to target transgender people, this time under the guise of protecting cisgender women.

The letter is necessarily predicated on the denial of trans women’s womanhood. Title IX was enacted to ensure women have equal opportunity relative to men in education programs receiving federal funding, but the letter makes no change to the total number of opportunities for women. Its purpose is just to prevent transgender girls from accessing those opportunities by forcing them to choose between not participating in sports or participating in a system that actively denies them their identity. And if enforced, it will have a disproportionate impact on more marginalized groups of trans girls, who may only have access to sports through school. The letter uses an anti-discrimination statute as a means to a discriminatory end.

The letter is about transgender athletes, but it is connected to broader policies that attempt to deny transgender rights in all forms. It started simply, when on the first day of the Administration, they began to remove LGBTQ+ resources from government websites. Since that foreboding start, the Administration has argued against trans youth in courts and attempted to implement a transgender military ban, widely condemned as blatant and pointless discrimination, as outlined in this 2019 Northwestern Law Review article (“the Trump Administration’s ban on transgender individuals serving in the military is based on prejudice and bias, lacking any legitimate justification”). Most recently, the Administration proposed a rule allowing shelters to discriminate against transgender people experiencing homelessness, and finalized a rule allowing healthcare providers to discriminate against LGBTQ+ people.

States have followed suit. Laws targeting trans people, often trans youth, have been proposed in 11 states this year alone. Idaho passed a state bill banning transgender-athlete participation in schools. Many of the above actions, including the Idaho transgender-athlete ban, are currently being litigated.

On that backdrop, Bostock v. Clayton County provided a breath of hope. But the justice system is an ultramarathon, and it’s tough to know where the implications of the decision will lead. Trans discrimination did not start with this Administration, and it will not end with this Administration. In the meantime, it’s important to openly talk about why the letter excluding transgender women from Title IX is potentially so harmful. We will start with human rights considerations affecting both transgender youth and adults, before getting into performance data.

Transgender athlete rights are human rights.

There are far-reaching justice and mental-health issues that result from the denial of trans people’s self-affirmed genders. Our identities are foundational to who we are as people and how we move through the world, on the sports fields and off. A 2011 report surveying thousands of trans people found that the top contributors to improving transgender mental health are access to transition and gender-affirming social support (from both family and peers). Excluding trans girls from sports participation is harmful along both dimensions. The letter from the Department of Education and the other state- and federal-policy decisions have the potential to marginalize, harm and even kill trans people.

For trans-youth athletes in particular, sports with or without age-appropriate transition steps goes beyond the playing field and into the type of society we want to have.

For some athletes, sports participation can be the difference between a fully realized identity and feeling alone in the world. For trans-youth athletes in particular, sports with or without age-appropriate transition steps goes beyond the playing field and into the type of society we want to have. It’s about open acceptance of all people, and about lifting one another up and sharing what matters to us, even if it’s something as seemingly inconsequential as sports.

If sport is just about who wins, then sport loses its power, particularly for children and adolescents. Sports are about stepping into the arena, learning and growing collectively and as individuals. Participation in sport is about life, not a scoreboard. And for trans athletes, sports can make a massive positive difference in the rest of their lives. But even beyond civil- and human-rights issues, performance data for transgender athletes does not approach any standard that could theoretically deny equal rights.

Performance data and a lack of an unfair advantage.

Genetic differences will always be a part of performance in sports. In running, genetics plays a factor in your muscle fiber composition, metabolism, VO2 max, durability and more. As we learn more about the complex interplay of genetics and performance, we’re seeing that even psychological factors like mental toughness may be explained at least partially by our genetic codes. We all have talent, it just presents itself in different ways, at different times and with different outcomes.

We all agree that genetic predispositions play a large role in variability of sports performance across individuals. We’ll get to the current information about how genetic differences do not give trans women an unfair advantage shortly, but a threshold inquiry is important first. Why is it that even though we have no problems with genetic differences in general, when the discussion turns to transgender women, we start debating about “unfair” advantages?

The answer, more often than not, boils down to an implicit assumption that trans women aren’t “real” women. You can see that in some of the media coverage focusing on appearance, or the social-media posts where people become biology experts to match their pre-existing worldview. If we start by acknowledging that trans women are women, then trans women winning women’s races, earning prize money or being awarded scholarships becomes a non-issue, because those opportunities are still going to women.

Still unsure? We understand that not everyone may be used to this line of thinking. Now may be a good time to pause again and remind ourselves that this topic is unfamiliar for many people, and that’s OK. We are in this together, as a running community. Now, let’s dive into whether trans women have genetic advantages.

Jump into nearly any discussion of trans women in sports, and you’ll immediately start to hear people discussing height differences, bone structure/density and so on. But arbitrary speculation about what trans women’s bodies look like is unhelpful. Instead, let’s look at the evidence.

A 2015 study by Joanna Harper in the Journal of Sporting Cultures and Identities that compared the athletic performances of trans women before and after at least one year of hormone-replacement therapy (HRT) found that transgender women with testosterone levels consistent with cisgender women had no performance advantage as runners. In that study, eight transgender women’s race results before and after HRT were compared over seven years, and the age-graded results were the same.

In other words, trans and cis women sometimes have physiological differences, but performance data on trans runners undergoing HRT does not indicate that those differences provide an athletic advantage.

While that may be a small sample size, multiple case studies back that up, and no study has contradicted the findings. In other words, trans and cis women sometimes have physiological differences, but performance data on trans runners undergoing HRT does not indicate that those differences provide an athletic advantage. While some argue that there’s not enough data to definitely disprove any advantage, trans women should not need to clear an arbitrarily high bar to be allowed to compete. Inclusion should be the default. And exclusion should only be proposed with extensive data to support it, after also strongly weighing the ethical ramifications of exclusion.

Simply put, there currently isn’t data to support exclusion.

The burden of evidence should not be placed on a marginalized and discriminated-against group. Even if you believe trans women should be barred from competition if they have an athletic advantage, there is no evidence to support discriminatory policies against trans women undergoing HRT other than speculation that has not been proven in performance studies on trans runners.

 Regardless of what hormone-replacement therapy does and does not change, the current scientific, data-based understanding is that transgender women following these regulations do not have an advantage in running compared to cisgender women.

While research is ongoing to include more trans women participating in a wider range of sports, this is the science behind the IOC, USATF, the Western States 100 and others’ regulations for trans women. Trans women competing under those regulations are required to maintain testosterone levels consistent with cisgender women for sufficient time before and during competition. A 2016 article in Current Sports Medicine Reports underscored that the regulations were supported by the limited scientific data available. Regardless of what hormone-replacement therapy does and does not change, the current scientific, data-based understanding is that transgender women following these regulations do not have an advantage in running compared to cisgender women.

These regulations can be burdensome, stigmatizing and potentially unfair to trans women. Trans women competing under USATF and IOC regulations are responsible for proving their eligibility to compete. Trans women are required to pay for and maintain medical records and lab results demonstrating that they meet these requirements. They are then required to furnish their private and intimate medical history on request to race directors, a stigmatizing process that few cisgender women will ever have to deal with.

And for individuals undergoing medical transition, HRT is about so much more than sports. The vast majority of trans women who take HRT do so to undergo as affirming a medical transition as possible. This typically means maintaining testosterone levels consistent with, or sometimes even lower than the average for cis women. But HRT is more complex than a testosterone dial you can tune at whim. Just as cisgender women have a bell curve of possible hormone levels, so do trans women. As an example, in my (Bee’s) case, my testosterone level pre-HRT was well within the typical range for cis men. On HRT, even without specifically trying to lower testosterone below average, my lab results frequently show my testosterone level to be over an order of magnitude lower than the average cisgender woman.

Yes, there are other factors at play like bone structure and height for some trans women. No one is debating that men on average perform at higher levels in sports. But trans women are not men, trans women on HRT have different physiologies than men, and there is currently no evidence that those differences actually give trans women on HRT an advantage. Performance is far more complicated than simplistic biological models for all athletes, whether trans or not. Bone structure, height, and testosterone are just a few of thousands of variables that can increase or decrease performance, some of which we can see and measure, and some of which we can’t. When those thousands of variables are added together for trans women undergoing HRT, there is currently no demonstrated performance advantage in the lab or on the track.

A fair future.

The critical forecasts of trans women taking over sports have simply not happened, after many years of trans participation. There has never been an out, transgender national champion in any distance-running event in the U.S., despite the women’s national records at all distances being relatively achievable marks for high-performing men. The Olympics has never included a single out, transgender athlete, despite trans athletes being allowed to participate since the 2004 Winter Olympics.

If the playing field is truly equal, it is a statistical inevitability that trans women will eventually win some of these championships, make some national teams, and earn some of the medals. That will be evidence that things are moving toward fairness, not away from it. In that future, any policies designed to exclude a vulnerable group will need to rely on undeniable scientific evidence of population-wide performance advantages, in addition to a thorough ethical discussion. And if that standard is not met, we must allow individual trans athletes to be performance outliers, just as we allow cis athletes to be outliers.

When we develop regulations governing trans women in sports, we should seek to be inclusive of as many trans women as possible, from policies governing local trail races and youth sports all the way up to policies for the Olympics and other professional events.

Additionally, transgender women are not a monolith. Some trans women have early access to gender-affirming medical treatment and never go through a stereotypcally-male puberty. Some trans women are also intersex. Some trans women are not able or do not want to seek hormone replacement therapy. And some trans women seek access to treatment, but are blocked by the same institutions that point to that lack of treatment as reason to exclude. When we develop regulations governing trans women in sports, we should seek to be inclusive of as many trans women as possible, from policies governing local trail races and youth sports all the way up to policies for the Olympics and other professional events.

For discriminatory policies to be justified, the barrier to jump is high. The argument in favor of limiting the right of trans women to compete has yet to leave the ground.

What next?

The current Administration letter is still new, and it’s unclear what its impact will be. At best, we can hope that the policy doesn’t stand up to further scrutiny. At worst, it has the potential to completely deny trans people the ability to participate in any school or collegiate sports in a way that affirms their identity and right to exist as themselves. It’s also not the first legal attack on trans participation in sports, and unfortunately it won’t be the last. Whatever happens, we need to come together to stand up against rules that seek to divide and exclude us. Acceptance and love are almost always the answers.

It’s normal to be conflicted on these and other complex issues. All we are trying to do is get you to rethink what you may be bringing into this issue. Sports brings people together and can be the impetus for positive change, but the playing field is sometimes the first place people think about this topic in a substantive way. It’s imperative that we give trans women the right to be themselves. And that includes the right to be one of the outliers who win races, as well as one of the thousands of trans athletes that are everywhere else on the performance bell curve.

The next time you discuss trans athletes, please consider weighing whether your position is fair to trans women just as strongly as you weigh your position’s fairness to cis women.

Everyone deserves fair treatment; that includes cis women, and it also includes trans women. The next time you discuss trans athletes, please consider weighing whether your position is fair to trans women just as strongly as you weigh your position’s fairness to cis women. Races should explicitly state inclusive policies for transgender athletes, matching or building on existing policies like that of the Western States 100. Transgender athlete voices should be respected. If there is a question of a trans athlete’s performance, that question should be handled as confidentially and respectfully as possible following inclusive trans athlete policies, and individual trans athletes shouldn’t be interrogated about their performance just because they’re good at their sport. Perhaps most importantly, we should try to be as open and accepting as we can, lifting up transgender athletes and everyone else along the way.

A trans woman winning a race is not evidence that trans women have an advantage, just as a cis woman winning races is not evidence that cis women have an advantage. We need to allow trans women to celebrate race performances without needing to repeatedly justify their right to participate. Fear and exclusion got us here, but acceptance and love can guide us forward.

Thank you for reading and caring. We appreciate your time and understanding.

Resources to access, learn from and support.

The Freedom Fund is an LGBTQ-centered bail fund.

Lambda Legal is an organization that provides advocacy and legal support to the LGBTQ community and people living with HIV/AIDS.

The Marsha P Johnson Institute is dedicated to supporting Black transgender people.

PFLAG is a network providing resources and support to friends and family of LGBTQ+ people.

Trans Lifeline is an intersex, nonbinary, and transgender specific crisis hotline.

Transgender Law Center is a legal support and advocacy organization for the trans community with an explicitly intersectional focus.

The Trevor Project provides support services to LGBTQ youth.

Bee (she/her) is a transgender trail and ultra runner who has been competing with other women in races for the past number of years.

David Roche (he/him) is a lawyer and running coach who has coached Bee for over four years.