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Biden's new mandate on transgender athletes swings and misses

Among newly inaugurated President Joe Biden's first official acts last week tacitly allowed transgender women the right to compete on women's sports teams.

The mandate, while not explicitly addressing athletics in detail, said that "children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports." So while it set no specific guidelines governing the participation of transgender athletes, agencies are to review their policies within 100 days to ensure transgender kids do not face discrimination within their educational experience.

Biden's heart is in the right place. But his head is not. This amounts to federal buck-passing, dumping the responsibility to govern a divisive, enigmatic issue on individual states. This is precarious, especially now in a culture whose inhabitants can't agree that NBA players are tall.

Example: According to Transathlete.com (via Newsweek), "there are 16 states with policies that are friendly to the full inclusion of transgender,  non-binary and gender-non-confirming students in high school athletics (such as Connecticut). Medical proof or disclosures are required in 14 states. There are 11 states with less-inclusive gender identity policies and 10 states that either do not have statewide policies, allow schools to create their own policies or rely on a single person to make decisions on a case-by-case basis."

Translation: We're all over the place. The reasons we can't agree are numerous, including a fundamental confusion over transgender issues in general, thus imperiling the necessity of common denominator information.

Our antiquated, one-size-fits-all laws do not address the inherent concerns of equity, morality and biology. They need to be rewritten because they do not sufficiently and specifically address the unique requirements and vagaries of sports as they relate to life's other engagements and competitions.

Biden's new order references the 2020 Supreme Court case Bostock v Clayton County. It employs a broad interpretation of Title VII to protect employees against discrimination because of their sexual orientation or gender identity. The case, "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," the Washington Post reported.

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 cannot possibly fit under the same umbrella.

The federal government must be more decisive. And it ought to use a strategy similar to its attack on COVID-19: Let science guide us.

A study in New York of men and women who had undergone hormone treatment for a year concluded, "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 Connecticut Interscholastic Athletic Conference, the state's governing body of high school athletics.

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.

So I ask: 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? Why can't we enact laws that defer 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.

There is no better expert here than Duke University Law professor Doriane Coleman, who is immersed in both the academic and athletic spheres. Coleman not only writes about sex and the law, but won the NCAA championship running the 800 and 4x400 at Cornell. Professor Coleman and I have become e-mail buddies, stemming from things we've written on transgender athletes.

"Inclusion of trans women and girls without regard to the extent of their male physical development or their hormone status reduces opportunities female athletes have to win podium spots and championships," Coleman said last week. "In effect, as some advocacy groups have claimed, it means that females only have the right to participate, not also to win, in girls' and women's sport."

The Biden Administration plays a dangerous game here. They bear responsibility to all citizens. This mandate imperils girls and women in a time when the women's sports revolution is among the country's greatest athletic distinctions.

"To secure the enormous value that girls' and women's competitive sport produces for individual female athletes, their communities, and society, lawmakers need to ensure that eligibility for competitive teams and events continues to be based on biological sex or at least on sex-linked biology," Coleman said.

"This is critical, because if trans women and girls who have the male sex-linked advantages that matter for sport — testes and bioavailable testosterone in the male range — are permitted to displace female athletes on girls' and women's teams and in girls' and women's events, lawmakers lose the only viable rationale for separate sex sport.

Think about it: The law doesn't provide for separate sex sport so that athletes have a setting in which to express their gender identities. It provides for separate sex sport because if it didn't, we'd never see females in finals or on podiums."

The Biden Administration must understand that Title IX no longer scratches the problem where it itches. It was written nearly 50 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.

"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."

This is the opinion of Day sports columnist Mike DiMauro

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