Sex and the separation of sport & state

Decades before the "Don't say gay" laws, the "Don't say Olympics" case led to a Supreme Court ruling that preserved American sports' independence.

The butterfly effect remains undefeated: in the early 1980s, San Francisco Arts & Athletics (SFAA) attempted to hold the "Gay Olympics" and, consequently, in 2025, President Donald Trump's non-consecutive second term executive order (this particular butterfly was on meth) cannot compel the United States Olympic and Paralympic Committee nor the national governing bodies to establish sex-protected male and female categories.

When former president Jimmy Carter died last year, a very small, a very unique group of Americans struggled with the long-held imprecation not to speak ill of the dead. "He stole my life," one of them told the Washington Post. Gene Mills was a wrestler and one of the athletes who would have gone to the 1980 Summer Olympics had the United States not boycotted the Games over the Soviet Union's invasion of Afghanistan.

Even 45 years on from his athletic prime, if I was speaking face-to-face with Mills, I probably would have a bit of trepidation about dropping a "Well, actually..." on him.

But safely behind my keyboard, actually, President Carter did not order the American boycott of the 1980 Summer Olympics because he did not have any authority to do so. Carter announced his opposition to American participation in his State of the Union address in January 1980. Over the next three months, the White House, Congress, and the United States Olympic Committee engaged in behind the scenes conversations, leading up to April 10, when Carter threatened "legal actions [if] necessary to enforce the decision not to send a team to Moscow." Whether that was throwing down the gauntlet or playing his part in a face saving maneuver for the USOC, two days later, the USOC House of Delegates voted to keep Mills and the rest of Team USA at home.

Challenges to this decision do not appear to have risen above the federal district court level, so while it was not a legal stress test for the recently passed Olympic and Amateur Sports Act (Ted Stevens Act), the situation did test the government's commitment to the Act's spirit and intent. In keeping with his low-key reputation as a deregulator, Carter helped preserve America's unique separation of sport and state.

Team USA and the American way

This history plays out mainly in the footnotes of the Supreme Court's decision in San Francisco Arts & Athletics, Inc. v. USOC (1986), as the Court addresses the question of whether the USOC is a governmental actor.

If it is, then it has to provide the full slate of Constitutional protections—in this case, Fifth Amendment protections against discrimination given that the USOC had (at least tacitly) allowed other organizations to use the word "Olympics" for their events, but had filed a copyright infringement suit against the organization that was organizing the "Gay Olympics."

The Court ruled that the USOC's Congressional charter and recognition via the Ted Stevens Act does not come at the expense of its status as an independent, private entity; nor does its ability to draw funding from Congress. In these regards, the USOC is akin to other entities that have a Congressional charter. The Court gives as examples the Daughters of the American Revolution, Veterans of Foreign Wars of the United States, and the National Academy of Sciences. Likewise, being incorporated at the federal level instead of the state level, as most corporations are, does not compromise the USOC's independence.

Justice Lewis Powell rebuts the dissent by returning to the Moscow boycott. "[T]he unique sequence of events in 1980 confirms that the USOC cannot properly be considered a governmental agency. Although the President and Congress indicated their view that United States athletes should not go to the Moscow Olympics, this was not the end of the matter."

Because it is not a government actor, the USOC is not constrained by the Constitution, and over 40 years after their first edition, the “Gay Games”—not the “Gay Olympics”—are still going strong today. And because it is not a government actor, the USOC is not under the authority of the president, who has showed unusual recognition of that limit.

Jimmy Carter did not have many qualms about issuing executive orders. He issued 320 executive orders in his single term, the third-highest rate of the postwar era (only JFK and Truman had more), and at least double the rate of George W. Bush, Obama, and Biden.

But he didn't attempt to wield that power over the USOC.

The USOC's non-governmental status means there is not a single route to bring the US Olympic movement—defined as the USOC and all constituent national governing bodies—in line with President Trump's executive orders "Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government" and "Keeping Men Out of Women's Sports."

Instead, there's one route to be repeated over and over and hopefully no more than that before the rest of the NGBs come in line.

Notice, too, that the only mention of the Olympics in either document looks outside our borders. "Keeping Men Out of Women's Sports" directs the Secretary of State to "use all appropriate and available measures to see that the International Olympic Committee amends the standards governing Olympic sporting events to promote fairness, safety, and the best interests of female athletes..."

The USOC might be the only entity, public or private, that Donald Trump doesn't try to boss, bully, or submit to one of his (in)famous deals.

The national governing bodies themselves, though, might be subject to government action.

In some regards, the NGBs are even more independent than the USOC. The Ted Stevens Act does not charter, designate, nor recognize any specific organization as the NGB for a sport—it gives the USOC authority to certify a given entity as the NGB for a given sport, provided that entity meets some specific standards and conditions. One of them is that it must:

"[provide] an equal opportunity to amateur athletes, coaches, trainers, managers, administrators, and officials to participate in amateur athletic competition, without discrimination on the basis of race, color, religion, sex, age, or national origin, and with fair notice and opportunity for a hearing to any amateur athlete, coach, trainer, manager, administrator, or official before declaring the individual ineligible to participate..." (emphasis added, as you probably guessed)

Pause and appreciate for a moment that for all the times the Ted Stevens Act has been amended, and for all the laws and regulations that have been genderwanged over the last decade, "gender identity" never afflicted Mr. Stevens' legacy. That definitely makes things easier, especially now that "Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government" states that "'sex' shall refer to an individual's immutable biological classification as either male or female. 'Sex' is not a synonym for and does not include the concept of 'gender identity.'"

The Act specifies the road ahead, and it starts at the USOC. Someone seeking to compel an NGB to act in accordance with the Ted Stevens Act—such as ending discrimination on the basis of sex, which they could do by using the same definition of sex as the Executive Order does—must file a written complaint with the USOC. The USOC then has 90 days to hold a hearing on the matter. If the petitioner convinces the USOC's tribunal that the NGB is violating the Act by discriminating on the basis of sex, the USOC shall either place the NGB on probation for up to 180 days while they figure out how not to discriminate against female athletes (I have a few ideas) or decertify that NGB.

If the USOC does not come around, the Act then specifies that the next step for the party making the complaint is arbitration.

Like most federally dictated administrative law and arbitration processes, this is long, onerous, and obnoxious, testing the resources and resolve of the individual petitioner against the resources and inertia of the agency or entity. But the USOC does not have unlimited resources, nor will they want to go through this process and the attendant publicity with each NGB.

Hopefully, the USOC has sufficient good sense that the process and publicity will wear on them as much as the whole men in women's sports thing does on us. And, if Sebastian Coe wins the presidency of the International Olympic Committee, then the USOC and the NGBs might recognize that they are now getting sex-realism from both sides—bottom-up from the grassroots of American sports and top-down from the long recalcitrant IOC itself. That could be enough pressure on the USOC to pass some onto the NGBs, strongly suggesting to them that this will be a go/no-go point for any future recertifications, and that the USOPC will not back any NGB that attempts to fight a petition for sex-protected female categories.

Two wrongs preserve the rights

The majority opinion in San Francisco Arts & Athletics, Inc. v. USOC is laughable at times, and Justice Brennan skewers them in dissent.

On the absurdity that the Olympics are intrinsically distinct from the government, he writes: "The connection is not lost on the athletes: who can imagine an Olympic hopeful postponing a lucrative professional career with the explanation, 'I can't pass up this chance to represent the United States Olympic Committee'?" Similarly, we all know who Tommie Smith and John Carlos were, and what they were protesting. The streets have already forgotten the various athletes who used their platform at national championships or the Olympics to protest NGB or IOC administrivia (I quickly realized Rule 40 was a loser issue).

But if it's possible to get both the reasoning and the decision wrong but still get the big picture right, San Francisco Arts & Athletics does that.

The United States is unique not only because the federal / national government does not fund sports, but because we do not have a Secretary or Minister of Media, Sport, Tourism, Digital, Recreation, and Dance, the way most countries—including our cousins in the Anglosphere—do. If you want to know how much worse this particular issue would be if we did, ask Linda Blade how things are in Canada. Say hi to CCES for me, while you're there. Or look at the arrests for "transphobic" speech in the UK, and take the very short step to connect that to the government's particular use of sport to censor and punish speech.

Gender Ideology Leaves Coaches With Nothing To Say

Or be rawly pragmatic. Think about the moment over the last eight years when you were most embarrassed or appalled by the executive branch of the United States government, then stir in your average interaction with your NGB, and top it off with your average interaction with the department of motor vehicles.

I assure you: no matter how much you hate your NGB, no matter how much you complain about favoritism, politicking, or stealth editing of qualification standards for national team selection for athletes or coaches, no matter how amazed you are to see a group of adults fight so viciously over so little, it would all be worse and you would hate them even more if they were acting at the direct behest of federal politicians and bureaucrats, and still more if they were political appointees and bureaucrats themselves.

Whether they were better Constitutional scholars than I'd have given mid-1970s politicians credit for, or they were more clear-eyed sportspeople than you would normally expect to find on a government committee, the "Commission that recommended the current USOC powers 'made it clear that it did not want the Federal Government directing amateur athletics in this country.'"

Recognizing this history provides valuable framing for understanding how we got here and what that, in turn, means for the road ahead.

Because our sports governing bodies are independent of the government, they each—as independently as their hivemind can ever be—developed and instituted the policies that have allowed, to varying extents, men in women's sports. They are each responsible for this state of affairs. It would be falsely simplistic and let too many people off the hook to blame this on a government diktat that flipped the switch from "sex" to "gender," and now we can be happy because a new diktat flipped the switch back. The culpability for succumbing to this social contagion is as wide and deep as the consequences it has had on our sports.

Reversing not just the policy but the ideas and fear that brought us to this point will require an equivalent effort: not just changing policies but changing minds and, within these institutions, changing people.

We'll need more than a few methed out butterflies to make that happen.

Cover photo: Lida / Flickr, under CC BY 2.0.