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Transgender Vs. Title IX

This week on Family Policy Matters, NC Family Communications Director Traci DeVette Griggs sits down with Denise Harle, legal counsel for Alliance Defending Freedom. Harle unpacks the recent Title IX complaint ADF filed on behalf of several female high school track runners in Connecticut. There, two biological men have been competing as women and winning every track race they enter, to the detriment of biological females and against Title IX rules.

Denise Harle discusses Title IX and Transgender

Family Policy Matters
Transcript: Transgender Vs. Title IX

TRACI GRIGGS: Thanks for joining us for Family Policy Matters. We have seen an assault, recently, on gains that women have made in the realm of athletics. This comes as many in our culture seem determined to allow men and women to self-identify as any gender they choose. Well, this has very serious and far-reaching implications in many areas, but the one we’ll talk about today is the impact it has on the federal law, Title IX, which is intended to level the playing field for women athletes regarding opportunities and dollars spent. 

Recently, the North Carolina High School Athletic Association Board of Directors approved language that provides a way for North Carolina high school students to compete in events as a gender that does not match their birth certificate. The Board justified the change by stating that,  “It is the intent that all students are able to compete on a level playing field in a safe, competitive, and friendly environment, free of discrimination.” Well, the group of teenaged girl athletes in Connecticut is not happy about how a similar policy is working in their state. They are challenging it in court, with the help of Alliance Defending Freedom. We’re joined today by ADF legal counsel, Denise Harle, to discuss this specific case, and how it fits into the bigger picture of where this philosophy appears to be taking us. Denise, welcome to Family Policy Matters.

DENISE HARLE: Thanks so much for having me.

TRACI GRIGGS: All right, in case there are those out there who don’t know or don’t remember, what is Title IX, and how does it affect athletic programs in our schools?

DENISE HARLE: Title IX is a federal law that Congress passed in 1972, and it was designed to ensure that women and girls have equal opportunities in education and athletics. So in the realm of sports, what it means is that females get equal opportunities to have teams that they can play on, and have facilities that they can use that are set aside for girls and women so that they can engage in the same sorts of activities that boys and men have long been able to do.

TRACI GRIGGS: Tell us about this case in Connecticut. What led ADF to file this Title IX complaint against the Connecticut Interscholastic Athletic Conference?

DENISE HARLE: The state of Connecticut has a policy for high school athletics that allows any athlete to compete based on their self-identified gender. This policy became a real problem about three years ago when two biological boys decided that they identified as girls and wanted to run track against the girls. Very quickly, these boys demolished state records. They took first and second in every race they competed in. Our clients—these three young ladies—tried to come to a peaceful reconciliation. Their parents started a petition; they tried to engage in dialogue with the State Athletic Association and administrators. Those conversations went nowhere, despite the obvious fact that girls and boys are different. So that’s what brought us to this Title IX complaint, which we filed with the federal government. It has instigated an investigation into Connecticut’s policy under Title IX, because it is in violation of Title IX.

TRACI GRIGGS: So what is the criteria in Connecticut for biological boys to be eligible to compete on girls sports teams?

DENISE HARLE: It is completely subjective. There is no criteria other than the individual’s self-professed identification, which really makes no sense at all because a boy’s belief about his gender doesn’t cancel out all of the physical advantages that he has over girls.

TRACI GRIGGS: Interesting. It seems like allowing biological males to compete on women’s sports teams recreates the exact inequities that Title IX was put in place to avoid. Do you agree with that?

DENISE HARLE: Absolutely, and that’s our exact argument to the federal government, is that this is destroying nearly 50 years of advances for women under Title IX. Women fought long and hard to be given those equal opportunities and to have discrimination eliminated under Title IX. Some wonderful things have happened. We’ve seen all sorts of achievements by female athletes: the growth of sports at the collegiate level, and even seeing some of those athletes go on to the Olympics, and other sports we love to cheer for. So, to remove that protection for women and girls would be a huge setback, and it would completely undermine the exact purpose of Title IX, which is why we think this is a pretty slam-dunk case.

TRACI GRIGGS: You know, you’re right, there have been a lot of gains, but it’s not like women have achieved parity. Statistics, of course, show that men on average are paid quite a bit more than women for similar jobs. The majority of higher-level management positions are held by men. Not to mention the lopsided media attention and compensation, of course, that men athletes receive in comparison to women athletes. So it’s not like we’ve arrived. But with all of that, is it surprising to you that women’s rights groups are not being more vocal about this?

DENISE HARLE: Yes. So you said a few things in there that are very important. One is that these protections are still needed because female athletes are never going to be able to compete fairly against male athletes. Science and common sense tell us that. Males are stronger than females. The differences range in muscle size, muscle strength, bone density, height; all of these physical advantages that will never allow a fair competition, or an equal competition, between males and females. And that’s why these girls are entitled to their own level playing field, which is all we’re asking for. It’s a real shame that we haven’t seen women’s rights groups speaking up for women here, because this is going to mean girls are off the podium and they’re on the sidelines in their own sports.

TRACI GRIGGS: So why do you think women’s rights groups are not speaking up?

DENISE HARLE: I think that issues of gender confusion, gender dysphoria, transgenderism— they’ve arrived very quickly. I think that they’re very sensitive subjects and a hot topic. We’ve seen businesses and any range of people in society really grappling with how to best address what is a very complicated, complex, nuanced issue. And so it’s not too surprising that people are reluctant to speak up when there’s a chance that there would be a social backlash. Because what we see is that women’s rights groups are often working alongside allies with LGBT, which includes the transgender. So that’s an alliance that I think is important to those groups and they are reluctant to jeopardize that in any way.

TRACI GRIGGS: So North Carolina’s new policy is different from Connecticut’s. There are some other things that you have to do—you have to apply, and there are certain treatments that you have to undergo. How far is far enough? In your arguments that you’re going to make on this case, are you saying that a transgender woman should never be allowed to participate in women’s sports?

DENISE HARLE: I think that it’s such a complicated issue that it’s something we need to have a lot of dialogue and thought towards. And ADF is very willing to do that, as I know our clients are as well. There’s no obvious solution. But what we do know is that there is absolutely no long-term study on this. There’s no science showing that any of these proposed solutions—of taking hormones for a certain amount, of putting your outward appearance with the opposite sex for a certain amount of time—none of those have been shown to erase the natural physical, biological advantages that boys have. Another thing we know is that in the womb, as early as nine weeks, testosterone can be detected in a baby boy. So that testosterone is pumping through the system throughout the entire course of the lifetime, while these boys are practicing and training. That builds up! So, it’s not something that can be eliminated by taking a round of shots or a year of doing some sort of therapy. We know that the boys are crushing girls on the playing field. Even those who have begun therapy, or have been doing it for some time are still absolutely dominating, which just shows how unfair it is. The science is settled that males and females are different down to the chromosomal level, and just having a cell from one individual can tell you whether they’re male or female. And that’s what we know.

TRACI GRIGGS: Denise, why do you suppose some people think the rights of transgender athletes supersede the legally recognized and protected rights of women?

DENISE HARLE: It’s so frustrating to see these rights clash because I think, ultimately, everyone here is seeking what they feel is equal opportunity and equality. But what we do know is that it’s not equal to have boys racing against girls. There has to be some other method to allow young people identifying as transgender to participate in some way that doesn’t steal all the opportunities from girls. And let me give you an example from this case. Our client, Selena, she missed out on moving on to the New England regionals competitions by two spots. Those top two spots were taken by the two boys that identify as girls. And that meant that Selena didn’t get the chance to go on to a place where she would’ve been seen by college recruiters and scouts. She could have potentially been given scholarships. We’ll never have any idea of which opportunities she missed out on. All of these things that she’s poured into—her practice, her passion—is now being almost shut down, because she knows before the race begins, she’s going to lose. It’s more than just a medal, although that is important. They’re also potentially missing out on the opportunity to be seen by college recruiters, and then go on to compete at the next level. Meaning college scholarships and all of the wonderful things that come with being a college athlete, like getting to travel, having the comradery of teammates, having mentorship, the physical advantages, the health advantages. It is so much more than just a place on the podium.

TRACI GRIGGS: What are you hoping will be the result of the ruling on this specific case in Connecticut? How are you hoping this will impact other states and even nationwide?

DENISE HARLE: So our hope is that this investigation, which is the first of its kind, will not only restore an equal playing field in Connecticut, but that the federal government’s finding that this sort of policy violates Title IX will send a message to, I believe it’s 17 other states that have these sorts of policies. So what we’d love to see is the states conforming to Title IX, once Connecticut is sort of the test case, and the federal government rules that this sort of policy violates Title IX.

TRACI GRIGGS: Do you have an estimate on when that ruling might be made?

DENISE HARLE: It could be as soon as just a few months, but we’ve also seen it take as long as two years, and perhaps some policies will change just in the meantime. Anyone who really studies Title IX can see that a policy allowing boys to compete against girls is the exact opposite of what Title IX demands.

TRACI GRIGGS: All right, well we’re just about out of time for this week, but before we go Denise, where can our listeners go to learn more about Title IX, and this particular case that we’ve been talking about today?

DENISE HARLE: Your listeners can find out all of the information about this case and Title IX, and some of the other great work that we have right now, at You can see the case page there, you can read our Title IX complaint there, and you can read more about Connecticut’s policies, as well as what’s going on in the other states.

TRACI GRIGGS: Great. Denise Harle, thank you so much for being with us on Family Policy Matters. 

DENISE HARLE: Thanks, Traci, it was a pleasure.

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