Sparks flew last week when Sen. Mike Lee, R-Utah, questioned National Collegiate Athletic Association President Mark Emmert during a Senate Judiciary Committee hearing about the association’s support for including biologically male trans-identified athletes in women’s sports.
While most of Wednesday's hearing — titled “Protecting the Integrity of College Athletics” — focused on the push to provide compensation for college athletes, it took a slightly different direction when it was Lee’s turn to ask questions.
Lee expressed concern about “the NCAA’s track record of undermining women by pushing schools to allow individuals biologically of one gender to participate in another gender’s sports.”
“I’m worried about some of the policies that you’ve taken,” the senator said. “It’s offensive to me and millions of Americans that the great strides our society has made to protect women’s rights and women’s sports are now at risk of being undone.”
Lee brought up the Fairness in Women’s Sports Act, a law recently passed in Idaho. According to Lee, the bill was designed to “protect female athletes by allowing only biological females in women’s sports.”
“The NCAA publicly criticized this law passed by the state of Idaho as ‘harmful to transgender student-athletes’ and ‘conflicting with the NCAA’s core values of inclusivity, respect, and equitable treatment of all individuals,’” Lee said.
In June, the NCAA announced it would discuss the Idaho law at its board of governors meeting in August after a coalition of athletes and activists asked the NCAA not to hold previously scheduled events in Idaho in protest of the Fairness in Women’s Sports Act.
After slamming the statement for failing to “speak to the interests of biologically female athletes,” Lee asked Emmert, “Do you stand by this statement made by the NCAA?”
Emmert responded in the affirmative: “I do. I think it’s an extremely challenging issue.” He also admitted that it was “a very challenging issue to find the right balance.”
“We have been working very closely with the U.S. and the IOC Olympic committees in order to try to keep our policies parallel around the participation of transgender athletes in intercollegiate athletics,” Emmert said. “But I am the first to admit that it is a very, very challenging issue to find the right balance.”
Under NCAA’s transgender inclusion guidelines published in 2011, "trans female (MTF) student-athlete[s]” are allowed to compete in women’s college athletics if they take testosterone suppression therapy for one calendar year. The policy does not allow male trans-identified athletes who do not take hormone therapy to compete on women’s teams.
When Emmert finished his response, Lee explained that his time had run out. Chairman Lindsey Graham, R-S.C., informed Lee that “we’ll do a second round.”
Before handing over the microphone, Lee asked for unanimous consent “to place into the record declarations made by three female NCAA athletes — Chelsea Mitchell, Madison Kenyon, and Mary Marshall — regarding their experience competing against transgender athletes.”
Lee mentioned that declarations in support of the Idaho law were made by the aforementioned athletes in the case of Hecox v. Little, the lawsuit filed against the Fairness for Women's Sports Act by the American Civil Liberties Union on behalf of a transgender athlete at Boise State University.
The experiences faced by Mitchell, Kenyon and Marshall are not unique.
Last year, Selina Soule, who ran track at a high school in Connecticut, claimed to have missed out on the opportunity to compete at an event attended by college scouts seeking to recruit athletic talent because two biological male trans-identified athletes were allowed to compete in a qualifying event.
Had only biological females been allowed to compete in the Connecticut indoor track championship, Soule would have been the sixth qualifying runner to compete in the regional event attended by college scouts. However, because two biologically male athletes who identify as females took the top two spots, Soule came in eighth place.
Soule filed a federal complaint with the Department of Education’s Office for Civil Rights. She made the case that a policy implemented by the Connecticut Interscholastic Athletic Conference that “allows biological males who claim female identity to compete in girls’ athletic events” violates Title IX of the Civil Rights Act.
The Alliance Defending Freedom, a legal firm that has spoken out against allowing biological males to compete in female sporting competitions, argues that it is a “physiological fact” that men “have more muscle mass, larger hearts, and higher bone density” than women.
At the federal level, the Democratic-led House of Representatives has weighed in on the debate about transgender athletes by passing the Equality Act, which includes discrimination protections on the basis of gender identity.
According to ADF attorney Kristen Waggoner, the bill actually “undermines women’s equality” because it denies biologically female athletes “fair competition in sports” and deprives women of business opportunities that are designed for them. Additionally, she says the Equality Act forces women and girls “to share private, intimate spaces with men who identify as female.”
So far, the Equality Act has stalled in the Republican-controlled Senate and has not been brought up for a vote. The legislation would be more likely to pass if Democrats obtain control of the Senate and White House in 2020 and keep control of the House.
The Department of Education and the Department of Justice have come out in favor of Soule and other students suing Connecticut public schools for allowing biological males to compete in female athletic events.