Introduction
On March 18, 2022, the NCAA Women's Division I Swimming and Diving Championships garnered national attention for more than just the record-breaking swims. The second day of competition saw Lia Thomas, the first known openly transgender athlete to compete at the NCAA Championships, beat out a field of Olympians in the 500 yard freestyle. (1) Even though Thomas competed in accordance with the NCAA's transgender-athlete guidelines, and finished nine seconds behind Katie Ledecky's American record, (2) cries of concern and outrage poured in against Thomas from across the nation. (3) Thomas's participation highlights the questions facing elite sports organizations (4) today: who can compete, in what category, and what must athletes do to be eligible.
Elite sports in the modern era are governed by a complex network of private organizations. Within the United States, the Ted Stevens Amateur Sports Act (Sports Act) grants the united States olympic and Paralympic Committee (USOPC) the power to recognize national governing bodies (NGBs) for any sport that is included on the program of the olympic, Paralympic, or Pan-American Games. (5) To be eligible for recognition, an NGB must, among other requirements, be the member of "no more than one international sports federation." (6) Once recognized as members of their respective international federations (IFs), (7) NGBs are part of the Olympic Movement (8) and receive instruction from the International Olympic Committee (IOC). (9) Outside of IOC guidelines, NGBs are typically given considerable leeway to regulate sports. Professor Dionne L. Koller argues that the federal government's hands-off approach to regulating sports "has translated into a generous degree of legal insulation for sports leagues, administrators, and regulators, especially in the way that they manage athletes and structure the games." (10)
The power structure created by the Olympic Charter and the Sports Act grants IFs great influence over the policies within the sporting bodies they oversee in the United States, including how competition will be categorized. (11) Until recently, the separation of elite sports competition into male and female categories had been accepted without controversy. However, as Lia Thomas's participation in elite swimming demonstrates, "[t]he creation of a separate category for female athletes inevitably leads to a fundamental conundrum--precisely who should be allowed to compete in women's sports?" (12)
In 2022, the IF regulating international aquatic sports, World Aquatics, (13) attempted to answer this question by proposing a third-gender category (14) for all female-identifying athletes whose testosterone levels are too high to compete in the female category. (15) And on July 25, 2023, World Aquatics announced plans to implement such an "open" category in its competitions for all transgender athletes to compete in. (16) World Aquatics announced plans to debut this open category at the Berlin Swimming World Cup 2023, running from October 6-8, 2023. (17)
This Note explores how World Aquatics's proposed third-gender category would fare under the laws of the United States if implemented by U.S. sports-governing bodies. Part I summarizes the preexisting barriers to elite competition for transwoman athletes and discusses how World Aquatics's proposal would further eliminate any possibilities for transwoman athletes to compete in line with their gender identity. The practical impacts a third-gender category would have on transwoman athletes' competition prospects are relevant to framing the discussion around whether a state actor or sports-governing body could, through its respective legal channels, confine transwoman athletes to a third category without impermissibly discriminating against them. The remaining parts explain potential legal challenges that U.S. sports organizations, now including state governments, will face if they choose to implement a third-gender category. Several states have already taken measures to regulate transgender-athlete participation in women's sports within their borders. (18) Those statutes reaching collegiate sports impact elite athletes on their teams. Because states have already begun regulating transgender participation in scholastic sports, (19) it is not unreasonable to assume they may take further measures to regulate transgender participation in all sporting activities within their borders. Part II focuses on the likely constitutional challenges states will face under the Equal Protection Clause of the Fourteenth Amendment should they try to enact a third-gender category through legislation. Part III discusses what legal challenges may be brought against non-state actor private sports organizations, like NGBs. While authorized by Congress through the Sports Act, neither the USOPC nor NGBs are state actors. (20) Thus, they are not subject to constitutional restraints. This Part explores how transwoman athletes could hold private sports-governing bodies liable: I argue a third-gender category would constitute discrimination under many states' public accommodation statutes. (21) Additionally, specifically for NGBs, instituting a third-gender category would strip an NGB of recognition under the Sports Act. This is because an amateur sports organization, like an NGB, is eligible for recognition only if it "provides an equal opportunity to amateur athletes, coaches, trainers, managers, administrators, and officials to participate in amateur athletic competition, without discrimination on the basis of ... sex." (22) By providing a roadmap of a potential legal challenges to a third-gender category in both scenarios, this Note cautions sports regulatory bodies against adopting a third-gender category within elite sports. (23)
I. Transwoman Athletes in Elite Sport
Transwoman athletes bear the brunt of the "who can compete as a female" conundrum. (24) Yet, outside of sports, transgender women are largely not required to qualify their womanhood. (25) Whether due to lack of resources or social stigma, transgender women are often unable to transition from their sex assigned at birth until after male puberty impacts their biological development. (26) In the context of sports, the potential post-puberty biological advantage transgender women may have over cisgender women has prompted regulation of transgender women's participation in elite sport.
A. Barriers to Participation
In the mid-2000s, gender verification in sports shifted from genetic sex testing to hormone testing; scientists settled on testosterone levels as the key to determining the advantage male athletes have over females. (27) Hormonal regulation of testosterone levels is now assumed to come as a price transwoman athletes must pay should they want to compete in line with their gender identity. (28)
Even as hormone regulation technology and social norms develop, the IOC and IFs continue to confront basic issues of how to categorize athletes while respecting their dignity and gender identity. In elite sports, the IOC instructs IFs to independently determine eligibility criteria for athletes who do not fit within traditional binary gender distinctions. (29) Each sport's specific regulations focus on outlining the requirements for non-cisgender female-identifying athletes to compete in the female category of their respective sports. (30) Because most IFs are currently grappling with how to allow transwoman athletes to compete in female-gender categories, this Note will focus on the problems facing elite transwoman athletes. (31)
B. The Male Advantage Thesis
Regulation of transwoman athletes in sports largely stems from the unproven assumption that those who are assigned male at birth have an innate biological advantage that prevents cisgender women from ever competing against them. This thesis has been reinforced over decades of segregating sports into a binary: males compete versus males and females compete versus females. The gender binary is so central to sports that some anti-transwomen-in-women's-sports advocates think sports cannot survive without it. (32) This Note will not endeavor to argue about whether maintaining the gender binary in sports is normatively good policy. (33) However, a scientific debunking of the male advantage thesis as it has been extended to transwoman athletes will be necessary for our discussion of why a state could not (or, at least, should not) relegate transwoman athletes to a third-gender category.
1. The Thesis Defined
The gender binary in sports originated because of what scholar Claire F. Sullivan calls the "advantage thesis." (34) Proponents of the male advantage thesis argue that differences between the sexes cause "persons assigned male at birth to possess physical prowess over persons assigned female at birth," which prevents male and female assigned-at-birth athletes from fairly and safely competing together. (35) As will be discussed further, this "advantage thesis" largely justifies the modern practice by most sports organizations to separate their competitions by sex. (36) And over time, separate categories have revealed that male athletes are more adept than female athletes. (37) However, scholars are beginning to reject that this success is innate in an athlete's maleness. For example, Professor McNamarah posits that "arguments supporting trans-exclusionary sports bans bring together the sweeping assumptions about women's physical capabilities." (38) Yet, "[p]hysiology alone ... does not predict athletic performance." (39) And advantage depends on the specific sport, (40) so a categorical relegation to a new category--i.e., an effective ban on transwomen competing in women's sport--is unsubstantiated. When addressing these few assumptions, arguments for a third-gender category already begin to crack, even before looking at science.
2. The Ninth Circuit's Take on the Science
Scientific studies clearly show that the male advantage...
