Sound public policy depends on a careful calibration of competing interests, a weighing of values and variables. Good outcomes seldom come from slapping slogans on a complex problem or imposing ideological rigidities.
That’s the context in which the Biden administration has advanced a reasonable solution to a rare but highly inflammatory issue — the role of transgender athletes who were born male but want to compete in female sports.
The proposed rules, which would apply to public high schools and any college that receives federal aid, try to balance two estimable goals — inclusion and fairness. And they do a pretty good job.
On one hand, the guidelines would prohibit any one-size-fits-all rule that would ban all trans athletes in all cases (about 20 states are in the process of adopting such measures). On the other, they recognize that athletes who have been born male have inherent advantages, and certain restrictions can be justified.
“Elementary school students would generally be able to participate on teams matching their identity,” explains The New York Times. “But as students get older and go through puberty, and as competition increases, schools and athletic organizations would make a multipronged assessment of whether or not to restrict transgender athletes from playing on their preferred team.”
“So, for instance,” adds the Washington Post, “a school district could justify a ban on transgender athletes on their competitive high school track and field team, whereas a district would have a harder time making that case for an intramural middle school kickball squad.”
Inevitably, activists on both sides denounced the proposals. “Under this rule, equal rights for female athletes are history,” said Penny Nance, president of Concerned Women for America, a conservative advocacy group.
From the left, Rep. Alexandria Ocasio-Cortez tweeted, “Absolutely no reason for the Biden admin to do this. It is indefensible and embarrassing.”
Both are wrong. But in today’s overheated political environment, the ideological extremes demand unwavering loyalty. Compromise is equated with heresy.
Now to be clear, some basic principles should not be subject to compromise. Trans individuals should have an absolute right to be free from discrimination when it comes to such personal matters as housing and employment. Moreover, there is no justification for the raft of mean-spirited measures, now moving through state legislatures, that bar gender-affirming treatments for transitioning young people.
But these unbendable rights have one thing in common: They all concern a person’s individual choices and opportunities. They do not affect or threaten others. But when it comes to highly competitive sports, the famous “harm principle” comes into play, which was articulated by the 19th-century philosopher John Stuart Mill: “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
“Most scientists,” reports the Times, “view performance differences between elite male and female athletes as near immutable.” And these differences create a basic unfairness. They harm cisgender women who have to compete against transgender women athletes.
Even ardent feminists like Martina Navratilova, the tennis champion, says that harm cannot be ignored. “I played against taller women, I played against stronger women, and I beat them all,” she told the Times. But if she’d been forced to compete against transgender women, she added, “I would have had no shot. And I would have been livid.”
Still, there’s room for reasonableness here, and that can be summed up in the stories of two transgender athletes. One is Becky Pepper-Jackson, now 12, who runs on her middle school track team. A one-size-fits-all West Virginia law banned her from doing so until the federal courts stayed implementation of the law and restored Becky to her squad. As Federal Judge Joseph R. Goodwin wrote, “Not one child has been or is likely to be harmed by B.P.J.’s continued participation.”
Then there’s Lia Thomas, who was born male and competed for the University of Pennsylvania’s women’s swimming team. Last year she won the NCAA 500-yard freestyle championship, directly impacting the chances of her rivals. The unfairness was undeniable, and the international swimming federation has now banned trans swimmers like her from global meets.
“I’m not a man,” Thomas told Sports Illustrated. “I’m a woman, so I belong on the women’s team.” In every other dimension of her life, Thomas’ identity should be respected and protected. But when she dives into the pool, her physical attributes create an unbridgeable advantage. At that point, her rights must be balanced against the rights of others.
(Steven Roberts teaches politics and journalism at George Washington University. He can be contacted by email at stevecokie@gmail.com.)
