“Fairness” and Discrimination in Sports: An Example of Anti-Trans Legislation in the United States

In 2022, there has been a record number of bills proposed to restrict the rights of LGBTQ+ citizens. While not the most draconian measures proposed, bills banning transgender youth from sports are the most commonly passed in states including South Carolina, Iowa, Tennessee, Indiana, and Louisiana. These bills are all structurally similar: a declaration that sports participation must be based on sex assigned at birth, and a decree that “injured” parties may pursue lawsuits against school districts. Louisiana’s SB44, the Fairness in Women’s Sports Act, includes the most explanatory reasoning and thus serves as a window into the method and motive of anti-trans discrimination in the US. 

Most of the legislation examined for the purpose of this article included sections welcoming any injured party to pursue a civil suit. The injured parties at question are implied to be cisgender female athletes harmed by transgender female athletes during competitions. (Almost all of the bills specify women’s sports which offers food for thought on how the United States patriarchy views transgender men.) The overarching argument is that anyone assigned male at birth is athletically superior to those assigned female at birth, and allowing these two groups to compete puts cis female athletes at a disadvantage — girls are allegedly discriminated against by the existence of trans people. 

Louisiana SB44 outlines this logic most explicitly, stating, “Requiring a biological female to compete against a biological male on a team that is designated as a ‘female’, ‘girls’, or ‘womens’ team is inherently discriminatory to biological females and is a cognizable harm to biological females….” 

The underlying purpose of bills like Louisiana SB44 is to enact discrimination against trans kids, and they succeed in doing so. In states wherein these bills are implemented, trans students are isolated on the basis of their sex assigned at birth and prevented from participating in a normal childhood experience. This oppression is a clear violation of the principle of equal protection outlined in the 14th Amendment and 1964 Civil Rights Act and expanded in the decision R.G. and G.R. Harris Funeral Homes vs. Equal Employment Opportunity Commission. (Harris was consolidated with Bostock v. Clayton County.) 

The 14th Amendment has been cited in countless anti-discrimination cases since incorporation began in the 1950s. The relevant sections of the amendment read as follows: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…; nor deny to any person within its jurisdiction the equal protection of the laws.” This particular text is the basis for anti-discrimination suits ranging from Brown v. Board of Education to United States v. Virginia — interestingly, the Louisiana bill cites the latter directly. 

Louisiana SB44 quotes the U.S. v Virginia majority opinion to exhibit how classifications on the basis of sex can be used to advance equality for women and reasons that these classifications are necessary in sports because of the inherent biological differences between men and women. Though the quote from the Virginia opinion is legitimate, it is taken drastically out of context. The Virginia case was quite literally a lawsuit to end the segregated education of men and women at the Virginia Military Institute; it found the separate women’s institution to be discriminatory and ordered the college to integrate. 

The opinion does concede that classifications on the basis of sex, which are “not for denigration of the members of either sex or for artificial constraints on an individual's opportunity,” can be useful in the advancement of women. What the Louisiana bill fails to acknowledge is the specific caveats against misusing these classifications, which “may not be used, as they once were… to create or perpetuate the legal, social, and economic inferiority of women.”  

Every intent of the Virginia opinion is designed to prevent opportunities from being denied on the basis of sex. While there may have been different popular and legal conceptions of sex and gender in 1996, take this argument for its substance — the goal is to advance historically marginalized and actively oppressed groups. 

It is plainly fallacious to quote the argument of Virginia in a bill designed to perpetuate differences and separations on the basis of sex. The authors of the Louisiana bill subjectively chose claims from a well-recognized Supreme Court of the United States opinion in order to justify the very thing the opinion was designed to abolish. The entire purpose of U.S. v. Virginia is to advance equality, and Louisiana is directly using these classifications to place artificial constraints on individuals’ opportunities. 

Furthermore, part of Louisiana SB44’s justification for perpetuating these classifications are the supposedly inherent biological advantages men have over women in sports: “studies suggest that women's performances at a high level will never match those of men. The evidence is unequivocal that, starting in puberty…there will always be significant numbers of boys and men who would prevail over the best girls and women in head-to-head competition. Claims to the contrary are simply a denial of science.” However, the validity of this evidence is disputable seeing as the authors, funding, methodology, and specific content of the studies are not mentioned.

On the other hand, there is substantial, verifiable scientific evidence that supports trans existence and calls into question the rigid biological differences thought to exist between the sexes. (Read more about the science of gender and incorporating this science in law.) 

Ultimately, the Louisiana bill is part of a wider agenda of anti-trans legislation. Their principal logic and motivation is not grounded in fairness for women or recognizing science but rather in Christian, patriarchal, and Republican politics.

To keep with the legal purpose of this publication, I will not go into detail about how anti-trans legislation in the US is influenced by Christian thought and organizations. It is a subtle influence; after all, any direct endorsement of religion would be a violation of the establishment clause. Essentially, the way gender and sex are constructed in Western society is connected directly to Christian, white supremacist, and patriarchal tradition. 

Existing bills about gender in sports are not designed to protect fair competition for women but to discriminate against trans people because they are perceived as a direct threat to social order. If women’s rights were the objective, they would reasonably be pursued in other areas of the conservative agenda.

Sports are key sources of community, exercise, and fun for young people grounded in friendly competition. Additionally, a key part of finding joy and affirmation as a trans person is finding a community where one is recognized as the gender they are. Bills like Louisiana’s deny trans youth this basic childhood experience (with negative effects on their well-being). 

Ultimately, ordinary sports teams are being politicized out of a desperate search for control. The goal of these bills is to maintain a rigid, gendered social order that is threatened by children trying to be themselves. 

Leo Worthington is a first-year staff writer interested in history and can be contacted at leo_worthington@brown.edu.