Does discrimination law protect gender identity or sex?

A lawyer's insight

There’s a lot of hand-wringing about male runner Soren Stark-Chessa shouldering into girls’ cross country races, a lot of saying, This has to stop. And yes it does need to stop. But for those in the back, I’m going to holler out (much as I would hope, I know it won’t be for the last time) that this cannot be achieved by the girls all getting together in the moments before the race and refusing to run. To those who suggest this fix, I want you to run around to the perhaps hundreds of girls doing A skips before the race whispering, “There’s a boy in the race. Don’t run!” and watch how quickly you’re removed from the event in a straight jacket, as you so richly deserve. NO. It’s not the girls’ job. It’s the job of sports administrators and legislators to make rules that make their sport safe and fair. If we care about protecting the rights of girls to have safe and fair sports, these are the people we need to be addressing. So I did.

Because Stark-Chessa is a Maine student, I called the Maine Principals Association. Mike Barnham called me back, leaving a voice message that said their five-person organization doesn’t have a transgender policy, but rather follows the statewide Maine Human Rights Act that he said “protects transgender students ability to compete in the gender in which they identify.” So, he said, “we have no comment on that other than that we follow the law, and that’s where the law currently stands.” End o’ story as far as Barnham was concerned. But not so fast hamburger.

The Maine Human Rights Act says it’s unlawful educational discrimination to deny equal opportunity to athletic programs based on sex, sexual orientation, gender identity, race, etc. Barnham et al are interpreting that the “gender identity” words give Stark-Chessa the right to run in the girls’ race. But what about the word “sex?” Couldn’t this be interpreted to mean that all the girls in Maine have the right to equal opportunity, to fair sport, based on their sex? Don’t girls have the right to a category that is 100% female? If there is a male in that category, it becomes a mixed sex category. Wasn’t some girl’s opportunity to place sixth in the New England Championships denied because there was a boy in sixth place? The rights of women at the international and national level to have women-only cross country races are protected—why not at the high school level?

This seems like a colliding rights issue—Stark-Chessa’s right to self-ID into the girls’ race, and girls’ right to fair competition based on their sex. Why is this law interpreted such that only the boy-who-thinks-he’s-a-girl’s rights are honored? Why do his rights matter and all those girls’ rights do not?

So many questions. I got hold of Unyielding Bicyclist (UB), a litigator who often writes about “gender affirming” care, but who is quick with the caveat she’s not a Title IX expert.

“Maine's Human Rights Act protects equality of opportunity in educational programs in similar language to Title IX, which is a good start. Now, in theory, are girls' rights being violated under the Maine Human Rights Act? I'd argue yes for the obvious reasons, but courts are likely to look to Title IX for help interpreting what the Maine Human Rights Act protects,” UB said.

Well, Bob’s your uncle, girls rights are being violated. What’s more to discuss? Legislators have found a lot more to discuss because—and this is just my theory—they are, for some reason, perhaps relating to money, motivated to prioritize trans-identified males’ rights over women’s rights and they have to talk about it a lot and throw around word salad to cover up that fact. See also, Lia Thomas, at least 50 cyclists, several other runners, powerlifters, disc golfers, boxing (!), MMA(!), etc etc.

“The text of Title IX isn't explicit about how sports opportunities should be afforded to girls, but for decades we were able to rely on OK agency and court interpretations of it,” UB said. “When things still weren't clear, common decency prevailed to keep boys out of girls' sports (and maybe liability issues related to injuries -- insurance policies, fear of lawsuits by injured girls). Of course, now there is no common decency and the interpretation of Title IX is totally up in the air and confusing. Gender identity is not written in the law but they’re pretending gender identity means sex. It’s totally incoherent. The way it’s being interpreted, gender identity is as valid as sex, or more so. It is a colliding rights issue but there are two different rights here—the rights of girls for fair competition, and the rights of the boy for inclusion.”

My will to live draining, UB advised that I “not kill myself trying to make sense of this.” I was beginning to understand that all this BS is just there to obfuscate the awful truth, that the law is simply being interpreted such that a boy’s right to inclusion in the girls’ race supersedes girls’ right to fairness. Just as we all thought.

“In Maine, some wannabe ACLU lawyers see that the hot new thing is gender identity, that there’s no such thing as sex. Again, they don’t have to have separate sex teams or fairness, they just have to protect gender identity. At first, there were so few [trans-identified boys in girls’ sports] it didn’t matter. Now the floodgates are open so they may have to make up new arguments. I don’t even know if there’s a right to have an all girls team, but they’d make something up.”

UB went on, “In a realpolitik sense, the Maine Human Rights Commission [which is to say, trans rights activists] is far more likely to go after them [the Maine Principals Association] for violating trans rights than girls' rights.”

In fact, I’d heard this before from sport performance coach Linda Blade, who has spent a fair amount of time at the upper echelons of international athletics. She tells the story of talking with a tippity-top person in Canadian sports about why sports federations and lawmakers continually come down on the side of inclusion for trans-identified boys at the expense of girls and women. His answer? Women won’t sue. And on the contrary, trans-identified men have been very eager to sue. Also, they’re men, even if they identify as women, so everyone clearly understands, their rights must be honored.

Thankfully, that is changing. In the Maine case, UB said a concerned citizen could sue the Maine Principals Association using the federal law, Title IX. That’s what some girls and their parents in Connecticut are doing. But, and this is a big but, they are being represented by Alliance Defending Freedom, a right wing very conservative group that may be doing the girls more harm than good. UB says a law firm with liberal credibility would be ideal because New England judges tend to be liberals themselves, and this issue is particularly politically charged. UB respects many of the conservative lawyers working in the gender-critical space (but not ADF). “There are so few good liberal lawyers in this space,” UB said. “You have to convince the Maine Human Rights Commission to take up your cause. Good luck with that. Connecticut is a pretty blue state.”

Back to our concerned parents wringing their hands over what to do. UB suggests they recruit the most respected, progressive, powerful lawyer they can find [maybe not the Alliance Defending Freedom], and sue using the federal Title IX attack, that girls are being discriminated against because of their sex. This sounds expensive and difficult, and it is. And it’s not expensive and difficult for trans-identified boys who sue for inclusion because the ACLU. Because Winston and Strawn, who will likely take on this case for free. Because billionaires back trans ideology.

A path red states have taken is enacting statutes explicitly protecting girls' rights to fair play and defining what a girl is. It pains me to think that Texas or Florida are doing anything right, but there you have it. Of course, trans rights activists have sued them (Idaho, West Virginia, Tennessee, Florida) with varying success. Much of it is ongoing with appeals.

UB concluded: “Setting reality aside, who does the Maine Human Rights Act protect in theory? Toss up. Title IX is unsettled right now and you could argue the Maine HRA shouldn't be interpreted the same as Title IX, anyway. Trans rights activists would argue the Maine HRA is more protective of trans rights than Title IX since its text explicitly names gender identity. So the principals' answer to you was reductive, cowardly, and unsophisticated. But I can't quite say they're wrong.”

Maine parents, wring no more. We know that the Maine Human Rights Act does not, in fact, protect all humans, only the ones born male who say they are female. If you have skin (daughter) in the game and you have the financial ability, sue. Blue as you may be politically, press your legislators to commit to girls’ and women’s rights, because this is foreign territory to them. And for the love of god, stop saying girls just need to refuse to compete.