In recent years, questions about who is eligible to compete on female high school and college sports teams has gained increasing attention based on three specific events: the inclusion of Lia Thomas, a transgender woman at the University of Pennsylvania, on her school’s women’s swim team; the inclusion of Blaire Fleming, a transgender woman at San Jose State University, on her school’s women’s volleyball team; and the inclusion of Becky Pepper-Jackson, a transgender girl from West Virginia, on her school’s girls’ track and cross country teams. On January 3, 2025, these questions about transgender inclusion in sex-segregated sports became even more germane when Florida Congressperson W. Gregory Steube introduced into Congress a bill entitled as the Protection of Women and Girls in Sports Act, which, if signed into law, would amend Title IX of the Patsy T. Mink Equal Opportunity in Education Act to provide that, for purposes of determining Title IX compliance, sex shall be defined “solely on a person’s reproductive biology and genetics at birth.”
While much of the Congressional debate about transgender inclusion in sex-segregated sports has involved political posturing, this Article, to the best of our abilities, attempts to explore the complex question of transgender inclusion in girls’ and women’s sports in a legal and more socially responsible manner. This Article begins by exploring the history of sex segregation in U.S. sports, as well as the history of early transgender athletes who have sought to compete on women’s sports teams. The Article then proceeds to discuss statutory construction of Title IX of the Patsy T. Mink Equal Opportunity in Education Act, including the possible meanings of the word “sex” as it appears in that act. Part IV addresses reasonable considerations for Congress to address when amending Title IX to account for issues related to transgender inclusion in sex-segregated sports. Finally, Part V explains why Congress’s proposed Protection of Women and Girls in Sports Act does not adequately address the policy concerns that call for reviewing and amending Title IX.
† This Article is the product of co-authorship by scholars from different disciplines, of different genders, and with different political party affiliations. Earlier drafts of this Article were presented the European Association of Management’s 2023 Annual Conference in Dublin, Ireland (June 15, 2023), the 7th International Sport & Discrimination Conference is Besancon, France (May 31, 2024) and the 100th annual Academy of Legal Studies in Business Conference in Washington, D.C. (August 2024). The authors thank the many commentators who provided feedback to them at these conferences. They also thank Cornell Law School student and former University of California college soccer player Haley Lukas for her kind research assistance on this Article when it was in its early stages, during the summer of 2023.
* Professor Marc Edelman (Marc@MarcEdelman.com) is a tenured Professor of Law at the Zicklin School of Business, Baruch College, City University of New York and the Director of Sports Ethics at the Robert Zicklin Center for Corporate Integrity.
** Professor Amanda Siegrist (asiegrist@coastal.edu) is the Associate Dean for Student Success in the Conway Medical Center College of Health and Human Performance and a tenured Associate Professor of Recreation and Sport Management at Coastal Carolina University.
The full text of this Article is available to download as a PDF.