Authors

Deborah L. Brake

Title IX's Trans Panic

Abstract

Sport has long been a site of struggle over competing conceptions of social justice, with no cultural flashpoint more contested than gender. A key site of contention has been the meaning and application of Title IX. With June of 2022 marking the law’s fiftieth anniversary, Title IX has been lauded as the law that launched girls’ and women’s sports from the shadows to their present, more celebrated posture. As these anniversary tributes often emphasize, female athletic participation has soared to new heights in all levels of sports. But Title IX also houses tensions and dilemmas for gender justice that were baked into the law from the beginning. A pragmatic mix of feminisms make up the logic and rationales behind Title IX’s legal framework, some with the potential to transform conventionally conservative understandings of gender but others that reinforce the salience of those conventional categories along with their limitations. Title IX’s three-part test for equal athletic opportunity, for example, has made sports participation for girls a normal part of growing up, breaking down gender stereotypes and opening new paths to empowerment for girls and women. By prioritizing participation growth with separate teams for girls and women, instead of merely formally opening up all-male teams to female athletes, Title IX has dramatically increased both the numbers of girls and women who compete in sports and the stature of women’s athletics. But this model has always been rife with dilemmas and costs—as is any legal framework that attempts to address social inequality among groups that are differently situated. Even as the law created unprecedented opportunities for girls and women to compete in athletics, it participated in constructing the very categories and hierarchies that contribute to the second-class status of girls’ and women’s sports. This is because the model of sex-separate sports—and the assertion of a Title IX right to equal treatment to demand equality across separation—implicitly reifies and reinforces the significance of sex as a gatekeeper to opportunity.

This Article begins by discussing the spate of state legislative efforts to exclude transgender girls from girls’ sports and the feminist-sounding discourses behind them that have split the women’s sports community. The Article’s main contention is that, when viewed against the backdrop of a broader anti-transgender movement, these measures must be understood as a moral panic. The rhetoric behind the panic explicitly draws on the themes of girls’ empowerment and Title IX. The Article goes on to explain the key features of a moral panic and explores why such a panic has taken hold in sports.

The Article then steps back and analyzes Title IX’s rationales for sex separation in sports. This part argues that the trans exclusion movement has seized on one singular rationale for sex-separate athletics—biological sex difference—while ignoring the alternative, less problematic rationales Title IX has embraced. The argument for excluding trans girls distorts and overstates the biological case for sex separation, eliding the nuance and uncertainty surrounding the linkage between male biology and athletic performance. At the same time, the trans exclusion movement opportunistically overstates the extent to which Title IX locks in sex-separation as its governing framework. Title IX’s unstable and contested meaning for transgender inclusion in sex-separate school programs and facilities is also explored. In the wake of the Department of Education’s seesawing positions during the past three presidential administrations and the Supreme Court’s groundbreaking 2020 decision recognizing gender identity and sexual orientation discrimination as a species of sex discrimination, Title IX’s requirements for accommodating transgender athletes in sport are in flux and unsettled.

The final section of the Article identifies and elaborates three ways in which the trans exclusion movement undermines Title IX’s promise of gender equality in sport. First, it promotes a biological essentialism that is at odds with the logic of Title IX as a sex equality law. Policing the binary sex line in sport is a losing proposition for women’s athletic equality and is inherently rife with racial and gender bias. Second, these trans exclusion legislative efforts are based on a model of sport that places winning above the educational and participatory benefits of sport, again, in tension with the logic of Title IX. Finally, trans exclusion in sport ignores the lessons of intersectionality by centering a privileged group of cisgender women while further marginalizing women with already-marginalized identities. Race maps onto this dividing line because what culturally codes as unfeminine, in bodies and behaviors in girls’ and women’s sport, is implicitly racialized. The Article concludes with some thoughts on how transgender inclusion can be reconciled with Title IX’s baseline of sex separation in sports. However the particulars of transgender girls’ and women’s athletic participation are sorted out, supporters of girls’ and women’s sports should unite in resisting the anti-trans movement’s efforts to co-opt Title IX in service of a conservative and exclusionary gender agenda.

This abstract has been adapted from the author's introduction.

Repository Citation

Deborah L. Brake, Title IX's Trans Panic, 29 Wm. & Mary J. Race, Gender, & Soc. Just. 41 (2022), https://scholarship.law.wm.edu/wmjowl/vol29/iss1/3