Testimony Before House Committee on Oversight and Accountability
Subcommittee on Health Care and Financial Services
United States House of Representatives
December 5, 2023
Sarah Parshall Perry
Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies
The Heritage Foundation
Chairwoman McClain, Ranking Member Porter, and distinguished Members of the subcommittee:
Good afternoon. My name is Sarah Parshall Perry and I am a Senior Legal Fellow in the Edwin Meese III Center for Legal & Judicial Studies at the Heritage Foundation.
I am also former senior counsel to the Assistant Secretary for Civil Rights at the Department of Education, a former varsity athlete, and the mother of a girls’ varsity volleyball athlete. The issue we’re here today to discuss is near to my heart, and I commend the Committee for holding a hearing on such an important topic.
The sex discrimination of old is new again.
Within education, one law—Title IX of the Education Amendments of 1972—should stand as a bulwark against sex discrimination. It provides the assurance that in all federally funded school programs, young men and women will be provided equal opportunities. But an expansive rulemaking on Title IX is currently underway at the U.S. Department of Education (“Department”), which provides for the participation of men in women’s scholastic sports. This is sex discrimination par excellence.
Properly classified, what we’re discussing today is an athletic scandal. It doesn’t involve East German Olympians swimming their way to glory by winning gold medals and setting world records via an elaborate, organized doping system. It doesn’t involve Russian figure skaters winning Olympic gold and later testing positive for hormone and metabolic modulators. This scandal is bigger: an athletic fraud of unprecedented proportions perpetrated by the federal government on American students. This fraud turns the obvious physical distinctions between the sexes into nothing more than the myths of a bygone era, while expecting female athletes to simply look the other way.
Title IX, a civil rights statute of a mere 37 words, has guaranteed sex equality in all federally funded education programs for more than 50 years. Long considered the crowning achievement of the feminist movement, it paved the way for equal educational opportunity for women who were historically excluded from higher education, scholastic athletic programs, scholarship opportunities, and more. Title IX’s origins lay incontrovertibly in the women’s movement, spurred by statements like those made by a federal judge in 1971 who famously declared: “Athletic competition builds character in our boys. We do not need that kind of character in our girls.” The extensive congressional record indicates Title IX’s mission was to equalize educational opportunities for women. But if the Biden Administration has its way, that guarantee of equality will evaporate.
The Department of Education’s Office for Civil Rights has proposed changes to Title IX via two upcoming rules that promise to be nothing short of catastrophic to that long-recognized assurance of a level educational playing field. The latter of the two rules governs criteria for athletic participation in federally funded schools and has been billed by the Department as a “compromise” between the athletic interests of women and those of transgender-identified men. It is anything but.
Instead, it’s a self-refuting tangle of considerations that offers a bureaucratic nightmare for any educational institution to which Title IX applies. It doesn’t “clarify” Title IX’s application to sex-based criteria in athletics as the Department purports. It complicates it. The rule departs from decades of Title IX’s application to scholastic athletics, obscures the plain text of Title IX’s long-standing athletics regulation with vague terms, an unworkable standard, and a guaranteed conflict with the contrary laws of 23 states, and balances the equities against the very girls and women who were at the heart of Title IX’s passage. It impressively manages to do all this while also violating constitutional and civil rights, as well as administrative law. And—the coup de grace—there is a strong argument that can be made that the Department lacks the authority to promulgate an athletics rule in the first place.
But we dare not forget Title IX’s original motivating principle: equality.
Males have greater lung capacity, larger hearts, more bone density, and more muscle mass—advantages which allow them to jump higher, throw further, run and accelerate faster, and punch harder than females. One recent study revealed that in the sports where upper body strength dominates, males possess more than a 50% athletic advantage over their female counterparts. This athletic gap emerges around age 12 when males experience a 20-fold boost in testosterone. In a study by two Duke University Law School professors, comparing Olympic champion sprinter Allyson Felix’s 400 meters lifetime best of 49.26 to that of men and boys around the world, the pubescent and adult males of all ages outperformed her more than 15,000 times in 2017 alone. To envision these competitive advantages in real time, we need look no further than “Lia” Thomas who clinched the 500-meter freestyle NCAA swimming championship for the women’s team at the University of Pennsylvania after competing for two years on the men’s swimming team. While swimming as “Will” Thomas, he had ranked a less than impressive 462nd in the nation. These physiological distinctions are now resulting in real, bodily harm to female athletes forced to compete with transgender-identified men.
In high school athletics alone, the rate of girls’ participation in 2016 was more than 10 times—an increase of over 1,000 percent— what it was prior to Title IX’s passage. Because of Title IX, women now constitute over 56% of American college students and 42% of all high school athletes. And one study demonstrated that 94% of senior female executives have played competitive scholastic sports. Title IX successfully changed the lives of girls and young women in America by broadening their educational horizons, which in turn, has set them up for career success in later life. Eliminating young women’s athletic opportunities would likely negatively impact their long-term professional opportunities as well, ultimately resulting in market effects that are hard to quantify and have yet to be studied.
Title IX and its implementing regulations contain a set of limited, sex-affirmative exceptions. These exceptions permit schools to take sex into account to address imbalances in admissions, academic programming, and sports. A sex binary—male v. female—is the foundation upon which the entire statute’s operation rests. Title IX’s use of the words “both” and “either” to address educational disparities within its regulations reinforces the understanding that, at least for the purpose of interpreting Title IX, there are only two sexes, and that the opportunities for both must be equal under the law.
As stated in the Preamble to the Title IX Final Rule, published by the Department of Education on May 19, 2020:
In promulgating [the original] regulations to implement Title IX, the Department expressly acknowledged physiological differences between the male and female sexes. For example, the Department’s justification for not allowing schools to use “a single standard of measuring skill or progress in physical education classes . . . [if doing so] has an adverse effect on members of one sex” was that “if progress is measured by determining whether an individual can perform twenty-five pushups, the standard may be virtually out-of-reach for many more women than men because of the difference in strength between average persons of each sex.”
These biological distinctions provide the imperative for Title IX. It would be ironic and wrong to enable biological males who declare themselves to be women based on their own sense of a wholly subjective, malleable, and evolving gender identity to obtain an unfair and discriminatory advantage over biological women whose immutable, unchanging sex has been recognized for decades as worthy of protection under well-established federal law.
A 2022 Washington Post poll found that 55% of Americans are opposed to allowing biological men and boys to compete with women and girls in high school sports, and 58% opposed to it for college and professional sports. The same poll found that more than two-thirds of Americans (68%) say that boys identifying as girls would have a competitive advantage over other girls if they were allowed to compete with them in youth sports. Caitlyn Jenner is a biological male and a celebrated former Olympian (a gold medal decathlete, in fact) who competed in track and field under the name “Bruce Jenner.” Though Caitlyn came out as transgender in 2015 and identifies as a woman, the former athlete recently spoke out against allowing transgender athletes who were born male to compete on girls' sports teams. Twenty-three states now bar biological males from competing in women’s scholastic sports based on their self-professed “gender identity.” The World Athletics Council has also excluded the participation of biological males from women’s international sporting events.
The nation agrees: separating school sports by biological sex is not a radical notion.
Transgender students are entitled to enjoy all aspects of American education in the same way students of every race, sex, creed, national origin, and religion do. This is the guarantee ensured by federal law. But they do not belong in spaces where the law has spoken unambiguously on distinct, long-standing, sex-specific protections for women and girls within the field of competitive sports. Critics may send up a hue and cry of bigotry—but that would be a misconstruction of the original language of Title IX as discriminatory, a misconstruction of criticisms regarding physiological advantage as hatred. I urge this chamber not to fall victim to the increasingly strong grasp of cancel culture and the woke zeitgeist.
Disagreement is not bigotry, especially when it will deprive biological females of the opportunity to excel in sports, and the confidence and lifechanging experiences that come with that competition. Recognizing settled physiological distinctions—as they have been from time immemorial—does not amount to discriminatory conduct. The entire cannon of American civil rights law exists to protect the interests of all Americans, not to elevate certain Americans to superior, privileged positions over others. The tenets of our anti-discrimination laws have long stood on the firm foundation of immutability—those characteristics that the U.S. Supreme Court has affirmed time and again as owing to nothing more than “accident of birth.”
While some might argue for the inclusion of their “chosen” characteristics (self-identification, for example) as worthy of protection in this civil rights law, the Supreme Court has never recognized such a standard—not even in Bostock v. Clayton County. Indeed, to do so would throw the entirety of the Court’s equal protection jurisprudence into question and require the overhaul of landmark civil rights laws that were the product of cultural conflict, and intense congressional debate and deliberation. Such laws cannot be changed with the simple sweep of a pen.
Title IX requires educators to see women as they see men and secures the educational equality of both. But when biological boys are glibly classified as “girls,” the feminist gains of the past 50 years are eviscerated. When men in women’s swimsuits can steal women’s national swimming titles, the battle to maintain women’s equal educational and athletic opportunities becomes impossible. Womanhood cannot be achieved by puberty blockers or cross sex-hormones. It is an immutable, biological, chromosomal reality that cannot be overcome and is deserving of the continued protection that Title IX provides.
If a few months of hormone suppression and a self-declaration of womanhood are enough to allow a biological male to compete as a woman, what, after all, was the women’s liberation movement for? The principles of fundamental fairness and equal opportunity embodied in Title IX’s longstanding application must prevail over arguments for the inclusion of males as females.
The future of women’s sports depends on it.
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