An NIH study published in the Journal of Sports Science and Medicine in 2010 concluded that the gender gap between men and women in sports performance has “not evolved since 1983…[suggesting] that women will not run, jump, swim or ride as fast as men.” In short, the study concludes that “sex is a major factor influencing best performances and world records.”

The study analyzes the evolution of male and female Olympians’ performance by examining “82 quantifiable events since the beginning of the Olympic era.” It also looked at the “best performance of the top 10 performers in each gender for swimming and athletics.” Essentially, the researchers found that around the early 1980s, despite the growing trend of women’s participation in sports, the gender gap performance trend between men and women began to “stabilize.”

“It appears that gender gaps in sport performance have been stable for a long time: women may never catch up with men. This stabilization of 26 years is the expression of a significant drop in the variation of these gaps’ magnitude. After a significant narrowing of gender gaps, women and men now evolve in parallel, in the same direction. The late implication of women in competition, their increasing participation, as well as the individual doping behaviours and state programs for performance enhancement may all have had a historical role but no longer reduce the gap. Without any technological improvement specifically dedicated to one gender or the other, performances will probably evolve in a similar manner for both men and women. The gap may be set.”

The Biden administration plans to buck the science of gender-based sports performance data with his January executive order. This EO extends to other spaces, such as bathrooms, shelters, prisons, and the military. The language in the order either seems to expand or ignore Title lX definitions of sex to include gender identity and sexual orientation. The order states, “All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”

While the order recognizes Title lX for its original intent, it seeks to insert as a potentially modifying influence Title Vll of the Civil Rights Act of 1964 as amended by the Supreme Court decision in Bostock v Clayton County. The decision concluded that one cannot discriminate based on sex—but that the definition of sex should expand to include gender identity and sexual orientation.

Title lX was originally co-authored by the first woman of color elected to Congress, Patsy Takemoto Mink, and was originally designed to mandate equal treatment for women and men in education.

In early January, a memo released by the Department of Education somewhat ambiguously debates the Bostock v Clayton County decision as to whether it construes or abrogates the prohibition sex discrimination in Title Vll. It specifically says it does not. The decision was narrowly decided, “specifically refusing to extend its holding to Title IX and other differently drafted statutes.” It also states the department “does NOT have the authority to enforce Title Vll.”

However, the memo then states that the “department does have authority to enforce, prohibits sex discrimination in education programs or activities receiving Federal financial assistance.” Title IX contains numerous exceptions authorizing or allowing sex-separate activities and intimate facilities to be provided separately based on biological sex or for members of each biological sex.

The memo continues to examine Title lX, fully recognizing that the “meaning at the time of enactment” construed sex to mean binary, biological sex—male or female. However, it expressly states that “Congress has the authority to rewrite Title IX and redefine its terms at any time”—something Congress has heretofore been reluctant to do. The memo also states, “depending on the facts, complaints involving discrimination on the basis of transgender status or homosexuality might fall within the scope of Title IX’s nondiscrimination mandate because they allege sex discrimination.” 

It is very important to note that a fair reading of the memo would conclude that the original intent of Title lX is supported. However, there is sufficient language therein to allow wiggle room for Title lX definitions to be expanded beyond its original biological, binary definitions and meaning if sufficient motivation to do so was present.

With the addition of Pam Karlan to his DOJ civil rights team, this may become a more widely validated reality for women in sports as well as other spaces like prisons and shelters. In the past decade, the guidance on Title lX has been hotly debated. Title IX guidance was issued during the Obama presidency, clarifying LGBTQ students’ rights in education and school activities such as sports. The Trump administration rescinded the guidance in its first month.

AP Photo/Dr. Miguel Cardona

In addition, the administration’s appointment of Dr. Miguel Cardona as the new Education Secretary portends changes that may affect adherence to single-sex spaces. When pressed by Rand Paul during his confirmation hearing, his answers indicate that he may not enforce Title lX as it was originally legislated.

Sherry Mix, a Wisconsin elite fat tire and mountain biking athlete, posted her experience on Empower Wisconsin in February. She recently finished third “in a Snow Crown Fat-Bike Series event in De Pere billed as Fattyshack.” A transgender woman named Kenzie Statz came in first, beating the second-place finisher by two minutes and Mix by three. “Before transitioning and competing in the women’s events, it appears Statz didn’t fare nearly as well in the men’s competitions.”

Mix is not the only woman who has struggled with the issue of competing with a transgender woman. A lawsuit filed on behalf of three high school women athletes in Connecticut argues that “opportunities for participation, recruitment, and scholarships—are now being directly and negatively impacted by a new policy that is permitting boys who are male in every biological respect to compete in girls’ athletic competitions if they claim a female gender identity.”

Mix is fighting for single-sex spaces with a petition organized by the group Women’s Liberation Front (WoLF). The organization has taken issue with the new executive order and seeks to protect Title lX in its original form. WoLF contends that it is of paramount importance to protect single-sex spaces, especially in sports, prisons, and shelters. WoLF filed a lawsuit against the Obama administration in August of 2016 because it violated Title lX with its policies.

The WoLF website features a video showing that a poll taken by 3500 voters reflects that the “majority support single-sex spaces for women.” It also contends that the Equality Act would remove such protections. The Equality Act of 2019 and sponsored by Rep. Cicilline, David N. [D-RI-1], known as H.R.5, has passed in the House and is pending in the Senate.

Natasha Chart, WoLF Executive Director, said, “This petition is an important first step towards holding the Biden administration accountable for how their policies will harm women and girls. Feminists are stepping up to defend the rights that previous generations fought for.” This petition begins a formal “rule-making process” to which the agency has 60 days to respond.