On April 5, 2021, The News & Observer published an opinion piece in opposition of girls sports at the middle and high school level being exlusively for biological females. The piece was written by Doriane Coleman, Juniper Eastwood, and Martina Navratilova. The authors expressed dissatisfaction with H.B. 358, claiming that the bill goes “beyond what is necessary” and does “harm in the process.”
The argument is essentially based on the notion that any distinction on sex is only constitutional when it is necessary to secure equality and when the means to achieve that goal are not unnecessarily broad and intrusive. The writers claim H.B. 358 fails to meet this standard.
Coleman and her co-authors claim that H.B. 358 will do “harm.” They essentially argue that there are three consequences that suggest harm is being done by the bill because 1) no exceptions are given for transgender girls who did not experience male puberty, 2) no consideration is given to the goal of sports at different levels (e.g., school clubs), and 3) there are no allowance for reasonable accommodations (e.g., hormone suppression treatment).
The first notion of harm is rejected because it completely ignores that prepubescent boys tend to outperform prepubescent girls on average with respect to athletics when they are assumed to be on a par with each other. According to a 2012 study on the differences between prepubescent boys and girls physical fitness, boys measured higher in aerobic fitness, strength, flexibility, speed, and agility, whereas the girls measured higher in balance and flexibility. This study has been replicated with the same results. Additionally, a 2017 study demonstrated divergence in athletic performance between the sexes start to become apparent around the ages of 12 or 13. This is middle school. H.B. 358 explicitly states, “All athletic teams for middle and secondary school students participating in interscholastic or intramural athletic activities.” Therefore, the scope of H.B. 358 does not “go beyond what is necessary” as it is limited to the range in which prepubescent children become apparently different with respect to athletic performance due to their biological nature. Consequently, to advance it in the face of the aforementioned evidence would require Coleman and the other authors to ignore the predicate that distinction on sex is necessary to secure equality.
The second notion of harm is rejected as well because the bill is limited to intramural sports and does not include extramural sports (i.e., club sports). Accordingly, the bill does not undermine the multiple goals of sports at different levels. Additionally, H.B. 358 is not a ban. All players are still allowed to compete.
I believe the third notion of harm gets at intrusiveness by suggesting the bill intrudes on reasonable accommodations. It is plausible that reasonable accommodations exist; however, suggesting hormone suppression is a sufficient allowance appears to be inadequate. A 2020 study published in the British Journal of Sports Medicine found that transgender women maintain an athletic advantage over their female counterparts even after a year of hormone therapy. As such, hormone suppression cannot be the only allowance to qualify a transgender woman to play in women sports.
Moreover, one must consider if any reasonable accommodation would undermine the goals of sportsmanship. According to the NCAA website, they highlight the goal of the organization is to achieve “the highest levels of integrity and sportsmanship.” Thus, I will suggest included in the previous maxim is the principle of fairness—and as such, there exist a moral mandate to secure fairness. Therefore, any reasonable accommodation should not undermine fairness.
Now, understanding the consequences of trans athletes competing with cis athletes will be difficult to measure. There is little data on how many athletes identify as transgender. In a piece published by the Associated Press, the journalist noted that lawmakers in other states advancing bills like H.B. 358 had little to no knowledge of trans girls participating in sports. So, it is likely a small number. However, we do have some data points to reference regarding transgender performance in sports. And those data points suggest athletic outcomes are not random. The AP article provided mostly examples of trans athletes that have exhibit a respectable amount of success within their respective sports. Thus, if the population is small, and most examples of trans athletes consist of winners (e.g., Mack Beggs who won state titles in girls’ wrestling) or super winners (e.g., Terry Miller and Andraya Yearwood who combined won 15 championships in girls’ track), then one can reasonably infer these outcomes are not random given what we know about biological differences between the sexes. (However, a proper heuristic would be to measure disparity between transgender girls and cisgender girl’s athletic performance.)
I believe the N&O opinion authors are avoiding these observations and questions in favor of advancing inclusion. Consequently, current observations suggest that their argument would result in undermining fairness for the sake of inclusion. Thus, violating the condition of constitutional necessity to secure equality and not being intrusive as they would be forcing biological girls to compete against members of the opposite sex.
In summation, the argument offered by Coleman, Eastwood, and Navratilova in opposition of H.B. 358 is inadequate. They advance conditions that ought to be maintained and at the same time advert measures that would undermine those same conditions.
Joshua Peters is a philosopher and social critic from Raleigh, NC. His academic background is in western philosophy, STEM, and financial analysis. Joshua studied at North Carolina State University (BS) and UNC Charlotte (MS). He is a graduate of the E.A. Morris Fellowship for Emerging Leaders.