Hearing on 2021 Assembly Bills 195 and 196

Testimony Gender

Hearing on 2021 Assembly Bills 195 and 196

June 2, 2021 9 min read
Sarah Parshall Perry
Legal Fellow, Meese Center
Sarah Parshall Perry is a Legal Fellow for the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation.
Sarah Parshall Perry
Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies
The Heritage Foundation

May 26, 2021

Testimony before the Committee on Education
Wisconsin State Assembly

Good morning. My name is Sarah Parshall Perry, and I am a Legal Fellow in the Meese Center for Legal & Judicial Studies at the Heritage Foundation in Washington, D.C. I am also former senior counsel to the Assistant Secretary for Civil Rights at the Department of Education. Thank you for giving me the opportunity to appear before you today to offer my views on AB 196, which would require public and private schools that operate or sponsor athletic sports and teams to designate those sports or teams as falling into one of three categories – those whose participants are male, those whose participants are female, and those whose participants are co-ed – and would prohibit male students from participating on an athletic team or in an athletic sport that has been designated for females. I commend the Committee for holding a hearing on this important topic.

I was born and raised in Waukesha, Wisconsin and was a softball player at Waukesha South High School, where I enjoyed the protections of Title IX of the Education Amendments of 1972, a federal law that prohibits sex discrimination in education programs or activities receiving federal financial assistance.REF These are protections my 14-year-old daughter now enjoys on her middle school volleyball team in Maryland. The issue we gather to discuss today is very close to my heart.

Today’s hearing is about fairness. It’s about equality. The participation of biological boys in girls’ sports is by its very definition unfair and unequal. Wisconsin’s young women stand on the precipice of losing what they have worked so hard to achieve.

AB 196 builds upon the foundation of Title IX. It is one of several similar bills that have been introduced in state legislatures across the country. These bills are not motivated by animus or bigotry against the transgender community, but by the absolute necessity of ensuring the continued equality of girls and women within education. Wisconsin’s current un-level playing field has once again made women the target of discrimination. This state’s interscholastic athletic policies are not progressive, but regressive.

In 1971, a Connecticut judge proclaimed: “Athletic competition builds character in our boys. We do not need that kind of character in our girls.” It was comments like these that helped fuel the groundswell of support for the protection of women’s educational opportunities during the waning days of the sexual revolution. It took a House and Senate Conference Committee several months to work through the more than 250 differences between the House and Senate versions of education bills. In 1972, the final legislation—the provision against sex discrimination—became Title IX.

Title IX filled the gap left by Title VII of the 1964 Civil Rights Act, which protects against sex discrimination in employment but otherwise excludes educational settings, as well as the gap left by Title VI, which prohibits discrimination on the basis of race, color, and national origin within programs receiving federal funding—but is silent on sex discrimination. These gaps necessitated a statutory remedy to address the vast educational disparities women and girls experienced in relation to boys and men before Title IX’s passage. In high school athletics alone, the rate of girls’ participation in 2016 was more than 10 times what it was prior to Title IX’s passage—representing an increase of over 1,000 percent.REF Title IX has successfully changed the lives of girls and of young women in America by broadening their educational horizons, which in turn, has set them up for career success in later life.

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 there are only two sexes, and opportunities for both must be equal under the law.REF

Title IX requires educators to see women as they see men. And it ensures that girls and women, at long last, can finally experience sex equality in their educational pursuits.

But the Wisconsin Interscholastic Athletic Association’s policies threaten to upend the hard-fought equality of girls and women in this state. Under the Association’s rules, transgender athletes (biological males) may participate on girls’ teams if they have had one year of testosterone suppression therapy. This is a laughably inadequate attempt to fundamentally change decades-long precedent on sex-segregated interscholastic athletics.

Let me be clear, one year of testosterone suppression therapy does nothing to change in any meaningful way the faster muscle twitch response, greater bone density, greater muscle mass, and higher lung capacity that biological boys possess when compared to girls. Such biological distinctions, which give biological males a decided, if not overwhelming, advantage over females in athletic competition, cannot be suppressed, period. In a studyREF by two Duke University Law School professors, comparing Olympic champion 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.

As stated in the Preamble to the Title IX Final Rule, published by the Department of Education on May 19, 2020:REF

In promulgating 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 AB 196 and offer a compelling argument in favor of its passage by this Assembly. 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 2021 Politico and Morning Consult pollREF found that 53 percent of Americans support a ban on transgender athletes competing in women’s sports. A 2021 Harvard HarrisREF poll found that 55 percent of Americans oppose Presidents Biden’s executive order allowing boys to compete in girls’ sports at schools. 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 outREF against allowing transgender athletes who were born male to compete on girls' sports teams. The weight of public sentiment is behind the passage of this bill.

Wisconsin’s governor Tony Evers has said:REF "My message to Wisconsin’s transgender kids and students today is simple: I see you. You are welcome, you are wanted, and you belong."

And they are and they do. 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 belong. 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 protections for women and girls within the field of competitive sports. AB 196 accounts for athletic opportunities sought by transgender athletes through recognition of co-ed sports teams.

While critics have sent up a hue and cry of bigotry and hatred in painting this legislation as discriminatory, they misconstrue dissent about biology and matters of public concern 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 life-changing 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 elevate certain Americans to a superior, privileged positions over others. AB 196 is the paradigmatic example of a level playing field—where boys and girls are given equal educational opportunities in all aspects of learning, including sports. To open women’s sports in Wisconsin to biological males will destroy educational athletic opportunities and guarantee unfair outcomes. AB 196 is a commonsense bill with commonsense language and a commonsense application.

Failure to pass this bill can, in my view, be properly labelled as misogyny. Womanhood cannot be achieved by puberty blockers, long hair, surgical intervention, lipstick, or the right athletic training. It is an immutable, biological, chromosomal reality that cannot be overcome and is deserving of the continued protection that AB 196 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?

I look forward to answering any questions you may have.

Authors

Sarah Parshall Perry
Sarah Perry

Legal Fellow, Meese Center