Within the climate of athletics and competitive sports, with competition roaring at new heights for some, there has been a growing tension as to the spaces which transgender athletes should be allowed to participate. Debates over those who are gender non-conforming and where they belong in sports, particularly gendered competitions, are not just a new hot topic issue; even since the mid 1970’s with Renée Richards in Women’s Tennis, the push for biological equity in gendered sports has been one of confusion. While such early cases may still pertain to the modern day, the broader acceptance of nonbinary gender identities has led to a cultural pushback for some against the division of sports according to biological sex.
Later this year, two cases in the U.S. Supreme Court’s circuit will be given finalized decisions: two cases which question the fairness of this boundary for transgender individuals in particularly a school sports environment. Amidst all the concerns over the potential conflict of sex and gender, these cases could have cascading effects on the ways in which higher levels of sports perceive and act upon issues of gender identity. Through the lens of both Little v. Hecox and West Virginia v. B.P.J., one may find a better understanding of the nuances that come when gender conflicts with legal precident.
While both of these cases come from a similar perspective of gender non-conforming students, the approaches to which they argue vary. In the case of Little v. Hecox, the focus is on a transgender track athlete seeking to compete on the Boise State University women’s track and cross country teams. When denied on the basis of the Fairness in Women’s Sports Act, which strictly separates student sports as designated based on biological sex, Hecox argued that the act violated the Fourteenth Amendment’s Equal Protection Clause as well as Title IX. Notably, the question is not as to whether there are present physiological differences between males and females, but whether basing athetics soley on such differences are inherly discriminatory towards transgender people. While initial court hearings were supportive of Hecox’s perspectives, noting how no biological male athlete had ever won any women’s events in Idaho, hearings in the Supreme court seem to mirror the sentiment of the state: there is a sense of injustice being done to women if Hecox and other transgender women are allowed to compete in these divisions.
West Virginia v. B.P.J. shares many of the notions of transgender inequity that Little v. Hecox does, but focuses much more on legal distinctions. Particularly, this case seeks to further highlight the importance of Title IX in ensuring equity for both cisgender and transgender women. The issue, as the court sees it, is currently centralized in this idea of gender based discrimination, mentioning how if transgender athletes were allowed to participate in higher levels of competition, it may irreparably damage women’s sports, undoing the good that Title IX set out to ensure by establishing equal competition environments. The court’s view on this case is similar to that of Little v. Hecox; however, here the language used to describe B.P.J. ‘s position presents them as a more explicit threat to Title IX.
While there is no doubt that there should be a maintained sense of “fairness” in sports competition, no resolution of this issue can be taken without a perceived injustice, whether it be to transgender women for being barred from competition or cisgender women for being forced into a patriarchal space for equal competition. The greater question then is, if such cases were to be heard and Title IX or the Equal Protection Act were made to allow transgender competitors into these spaces, what would be the repercussions moving forward? It is very much possible that these hypothetical rulings could turn the sporting scene to move away from gendered competition, encouraging men and women to compete against one another rather than in parallel competitions. These decisions could easily spark questions on a scale greater than the states of Idaho and West Virginia; renewed concerns about similar gendered divisions could be reignited in regional or even national circles. Whether this shift towards a gendered understanding of competitive sports is one of equity or renewed patriarchy is unclear, but with the growth of such concerns surrounding gender equality in recent years, perhaps the future holds only more questions about the very concept of gender itself for our nation.
