Sports organizations on both sides of the Atlantic seem to have adapted an apocryphal Winston Churchill quote into their modus operandi: only after exhausting all other options will they do the right thing and protect women’s sports.
The clock started ticking for British sports on April 16, when the United Kingdom Supreme Court ruled that “man,” “woman,” and “sex” — as used in the Equality Act of 2010 — refer to biological sex. Cue Colonel Jessup: “Is there another kind?” Well, yes, argued the respondents in this case: there’s “certificated sex,” the gender listed on one’s Gender Recognition Certificate (GRC). Individuals who “provide[d] evidence that they have or have had gender dysphoria, have lived as their acquired gender for two years and intend to continue to do so until death,” could receive a GRC. The gender, or “certificated sex,” listed on the GRC would override the holder’s biological sex for legal purposes, including anti-discrimination enforcement.
If “certificated sex” sounds vaguely familiar in a sports context, it’s because it echoes “passport sex,” the International Olympic Committee’s justification for allowing boxers Imane Khelif and Lin Yu-Ting to compete in the female category at last summer’s Olympic Games.
British sports governing bodies, under the influence of activist groups like Stonewall UK and Gendered Intelligence, used the manufactured uncertainty of sex and gender to rationalize their “trans inclusive” policies. If there was any chance that the Equality Act meant anything other than “adult human female” when it used the word “woman,” the governing bodies’ safest play in terms of activist pressure and litigation was to permit males into women’s sports.
The clarity of the UK Supreme Court’s decision left no wiggle room.
Various sports announced changes to their policies in days following the ruling, but everyone was waiting for the big one: football, that is, soccer. If the FA complied, it would be all over. There’d be no point in any other sport holding out for “trans inclusivity” if the FA said that women’s football would be exclusively for biologically female (pardon the redundancy) footballers.
The FA announced their new policy on May 1. Calling it a “complex subject,” they made sure you knew how reluctantly they were acceding to reality. “[O]ur position has always been that if there was a material change in law, science, or the operation of the policy in grassroots football then we would review it and change it if necessary.”
They also said they would be “contacting the registered transgender women currently playing to explain the changes and how they can continue to stay involved in the game.”
The FA gave no indication that they would be contacting the hundreds of female footballers who have been directly affected by having males on their pitches and in their changing rooms. Nor did they say if they would be contacting men’s teams to say “Lads, you’re going to have some new players. They may look and act a bit different than your regular bloke, but you better not be daft about it.” Had the FA or any other sports governing body done that over the last 15 years — listen to the affected female athletes and ensure that men’s sports are welcoming to all males, regardless of how they identify — a lot of problems would have been avoided.
With every other option being exhausted or foreclosed, the FA and its peers are doing the right thing. The United States’ largest sports governing body, on the other hand, insists on working through some more wrong options.
The NCAA announced their current “Participation Policy for Transgender Student-Athletes” on February 6, one day after President Trump signed the “Keeping Men Out of Women’s Sports” executive order. That executive order built on one from two weeks earlier, “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The latter defined “sex,” “male,” and “female” explicitly and solely in biological terms; defined “men” and “women” as adult human males and females, respectively; and stated that “‘Sex’ is not a synonym for and does not include the concept of ‘gender identity.'”
The NCAA’s transgender participation policy does not define “male” and “female.” Instead, it bars individuals “assigned male at birth” from competing in the women’s category. The word “assigned” tells you everything you need to know: activists wrote this policy, and documentation overrides biology. The NCAA defines sex assigned at birth as the “male or female designation doctors assign to infants at birth, which is marked on their birth records.”
This opens two doors for males to compete in women’s collegiate sports.
First, a male with a disorder of sexual development (DSD) could be “assigned female at birth.” That situation is how three male athletes — most famously Caster Semenya — won gold, silver, and bronze in the women’s 800-meter race at the 2016 Summer Olympics; and is likely how Imane Khelif and Lin Yu-Ting had the “passport sex” that enabled their ascent through women’s boxing. This scenario is relatively unlikely in the United States, but could occur with international student-athletes.
Second, over 40 states allow people to change their birth records to reflect their gender identity. Even if they were “assigned” the correct sex at birth, a trans-identifying athlete could present the NCAA with a legally amended birth record showing the other sex, and this would be the basis for their collegiate sport eligibility. Being “assigned” sex at birth is an anti-concept in biological terms, and is a hollow concept in athletic eligibility terms when it can be changed at will.
While England’s Football Association has found their way via the United Kingdom Supreme Court to objective and immutable biological sex, the NCAA is still at the stage of “certificated sex.”
The NCAA appears committed to expending their time and resources working through their remaining bad options in working groups, committees, consultations, and the courts. The apocryphal Churchill might say they are the quintessential American sports governing body. Meanwhile, female athletes will continue to pay the price in opportunities, fairness, and safety. To paraphrase a less illustrious politician, how do you ask a female athlete to be the last one to lose a title or get a concussion for a mistake?
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