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On transgender athletes: The law cannot stand still

To get anywhere close to unraveling this subject — transgender students competing in high school sports — we begin by acknowledging enigmas littering the road in every direction.

Our antiquated, one-size-fits-all laws on this issue do not address the inherent concerns of equity, morality and biology. They need to be rewritten.

"My heart aches seeing the struggles of males who believe they are females. Anyone struggling with his or her identity in this way needs love, support, compassion and friendship — and absolutely deserves protection from bullying and violence," attorney Anita Y. Milanovich wrote in an op-ed piece for USA Today. "Even so, a just, equitable and compassionate solution simply cannot require the redefinition of what it means to be a girl or a woman."

Connecticut sports sit at the heart of this issue. Debates have raged and lawsuits are pending over whether two transgender female runners, recent graduates Terry Miller of Bloomfield and Andraya Yearwood of Cromwell, should have been allowed to compete against their cisgender (a person whose gender identity corresponds with that person's biological sex assigned at birth) peers.

Cisgender competitors filed a Title IX complaint in June 2019, claiming Miller and Yearwood, who won a combined 15 championship races, had an unfair athletic advantage. They have filed a federal lawsuit as well.

And here we sit in the morass, trying to decipher a most complex and divisive issue. I'm ready to emerge from the morass and say this much: All existing laws on the subject do not sufficiently and specifically address the unique requirements and vagaries of sports as they relate to life's other engagements and competitions.

Here is what I mean: Last week, the Supreme Court advanced the cause of LGBTQ rights, ruling that a landmark civil rights law barring sex discrimination in the workplace applies to gay, lesbian and transgender workers.

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex," Associate Justice Neil Gorsuch wrote. "Congress adopted broad language making it illegal for an employer to rely on an employee's sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law."

Common sense suggests that the court's ruling "is likely to have a sweeping impact on federal civil rights laws barring sex discrimination in education, health care, housing and financial credit. Lawsuits pertaining to those laws are pending in lower courts, which are required to follow Supreme Court precedent," as reported in the Washington Post.

Nobody with a conscience should argue that. Sex discrimination in education, health care, housing and financial credit have no place in this country. Yet applying to a school or for health care, housing or financial credit requires no physical component to succeed. Sports require a physical component and thus do not fit under the same umbrella.

"Whatever you believe about gender identity in general, the simple fact is that biology is what matters in athletics, not a person's identity," wrote Bianca Stanescu, who filed suit in February against the CIAC for its policy of allowing transgender athletes to compete in accordance with their gender identity. "Gender identity can be changed. Sex is embedded in our DNA and cannot be changed. It is reflected in realities like lung capacity and bone density. Sex is not gender."

The science shows as much. The Cold Spring Harbor Laboratory, a not-for-profit research and educational institution, used a bioRxiv method to study transgender men and women who had undergone hormone treatment for a year. The bioRxiv conclusion: "Despite the robust increases in muscle mass and strength in TM (transgender men), the TW (transgender women) were still stronger and had more muscle mass following 12 months of treatment. These findings add new knowledge that could be relevant when evaluating transwomen's eligibility to compete in the women's category of athletic competitions."

More evidence: Olympic sprinter Allyson Felix, tied with Usain Bolt for the most World Championship gold medals, owns a lifetime-best time of 49.26 in the 400 meters. In 2018 alone, 275 high school boys ran faster on 783 occasions, according to one of the lawsuits against the CIAC.

So now I ask: What is the best social benefit for all kids who participate in sports? As attorney Milanovich wrote: "to discern and develop the skills and abilities that grow us into adults." Biology alone makes a compelling argument that cisgender girls are being placed at a competitive disadvantage and bear a disproportionate burden.

This is where the benign neglect of the law, lawmakers and other makers of policy must end.

Roscoe Pound, the dean of Harvard Law School for 20 years, said many years ago "the law must be stable, but it cannot stand still." Our laws are standing still because our lawmakers are petrified of being labeled transphobic.

Why can't we explore a new, sports-centric law that acknowledges sports' unique challenges and accommodates the physical component for success that exists virtually nowhere else in society? A law that defers to science? Once again:

Sex discrimination in education, health care, housing and financial credit have no place in this country. But we must — must — realize and accept that sports are different.

Until we do that, the wheels will spin furiously, but with no traction. Connecticut lawmakers, as they did last week, will denounce the U.S. Department of Education's recent decision that the CIAC's policy allowing transgender students to compete in accordance with their gender identity violates Title IX. The Department of Education also threatened to withhold federal funding from the CIAC as well as school districts who do not comply with the ruling.

I respect the CIAC's stance. I just disagree with it. But threats to withhold federal funding are too punitive given the complexities of this issue. How typical that this administration leans into punishment before considering thoughtful compromise — or at least amending a law that is nearly 50 years old.

Title IX no longer scratches the problem where it itches. It was written 48 years ago. It uses the word "sex" and not "gender." We are learning the differences. Title IX reads, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

Based on that wording, I'm not sure we'll ever do any better than we are now. We need a new law. A unique, sports-centric law. Because sports are different. The law must be stable, but cannot stand still.

This is the opinion of Day sports columnist Mike DiMauro

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