34 C.F.R §106.40(a) (“No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.”).
Bostock v. Clayton Cnty., Ga., 207 L. Ed. 2d 218, 140 S. Ct. 1731, 1738-54 (2020) (holding that “An employer who fires an individual merely for being gay or transgender violates Title VII”).
National Collegiate Athletic Association, NCAA Title IX 5oth Anniversary: The State of Women in College Sports, 15 (2022) https://s3.amazonaws.com/ncaaorg/inclusion/titleix/2022_State_of_Women_in_College_Sports_Report.pdf (noting that in 1972, just 7% of high school athletes were girls. In 2019, 43% of high school athletes were girls).
Id. at 17.
DEBORAH L. BRAKE, GETTING IN THE GAME: TITLE IX AND THE WOMEN’S SPORTS REVOLUTION 5-6, (New York University Press, 2010).
Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria for Male and Female Athletic Teams, 88 Fed. Reg. 22860 (proposed April 13, 2023) (to be codified at 34 CFR 106)
Hecox v. Little, 479 F. Supp. 3d 930 (D. Idaho 2020) (quoting Idaho Code § 33-6203(3), “[a] dispute regarding a student's sex shall be resolved by the school or institution by requesting that the student provide a health examination and consent form or other statement signed by the student's personal health care provider that shall verify the student's biological sex. The health care provider may verify the student's biological sex as part of a routine sports physical examination relying only on one (1) or more of the following: the student's reproductive anatomy, genetic makeup, or normal endogenously produced testosterone levels.” (emphasis added)).
The Trevor Project Research Brief: LGBTQ & Gender Affirming Spaces, THE TREVOR PROJECT, 1 (Dec. 2020) https://www.thetrevorproject.org/wp-content/uploads/2021/07/LGBTQ-Affirming-Spaces_-December-2020.pdf (finding that “the strongest association with reduced attempts was for LGBTQ-affirming schools. . . .”).
2023 Anti-Trans Bill Tracker, https://translegislation.com/ (accessed April 17, 2023).
“They’re Chasing Us Away from Sport”
Human Rights Violations in Sex Testing of Elite Women Athletes, HUMAN RIGHTS WATCH (Dec. 4, 2020), https://www.hrw.org/report/2020/12/04/theyre-chasing-us-away-sport/human-rights-violations-sex-testing-elite-women#:~:text=Sex%20testing%20violates%20a%20range,%2Dtreatment%2C%20and%20employment%20rights. See also, supra note 7, at 986 ("Pediatric consensus recognizes that genitalia exams are always invasive and carry the risk of traumatizing patients . . . .").
Patricia A. Vertinsky, Gender Relations, Women’s History and Sport History: A Decade of Changing Enquiry, 1983-1993, 21 J. of Sport History 1, 11 (1994) (“[S]ports have been ‘so thoroughly masculinized that it seems unlikely that [they] can be reclaimed to serve women’s interests.”).
Lindsay Parks Pieper, Sex Testing and the Maintenance of Western Femininity in International Sport, 31:13 INT'L J. OF THE HIST. OF SPORTS 1557, 1560-63 (2014), https://www.tandfonline.com/doi/abs/10.1080/09523367.2014.927184.
Women's Sports Foundation & YouGov America, Inc., Title IX and Girls in Sports, WOMEN'S SPORTS FOUNDATION, 8 (June 2017), https://www.womenssportsfoundation.org/wp-content/uploads/2017/07/title-ix-and-girls-in-sport-report-public-final.pdf.
Id.
Krystal Batelaan & Gamal Abdel-Shehid, On the Eurocentric nature of sex testing: the case of Caster Semenya, 27(2) SOCIAL IDENTITIES 146, 146-47 (2021) https://www.tandfonline.com/doi/full/10.1080/13504630.2020.1816452.
Pieper at 1560-61.
Aaren Pastor, Unwarranted and Invasive Scrutiny: Caster Semenya, Sex-Gender Testing and the Production of Woman In ‘Women’s’ Track and Field, 122(1) FEMINIST REV. 1, 6 (2019) https://journals.sagepub.com/doi/10.1177/0141778919849688
Jill Martin, Transgender runner CeCe Telfer is ruled ineligible to compete in US Olympic trials, CABLE NEWS NETWORK (June 25, 2021), https://www.cnn.com/2021/06/25/sport/transgender-athlete-cece-telfer-trials-olympics-spt/index.html.
HUMAN RIGHTS WATCH, supra.
Batelaan & Abdel-Shehid at 56-57.
S. Mahomed & A. Dhai, Global injustice in sport: The Caster Semenya ordeal - prejudice, discrimination and racial bias, 109(8) SOUTH AFRICAN MED. J., 548, 549 (2019), https://pubmed.ncbi.nlm.nih.gov/31456545/.
“They’re Chasing Us Away from Sport” Human Rights Violations in Sex Testing of Elite Women Athletes, HUMAN RIGHTS WATCH (Dec. 4, 2020), https://www.hrw.org/report/2020/12/04/theyre-chasing-us-away-sport/human-rights-violations-sex-testing-elite-.
Id.
Transgender Women Athletes and Elite Sport: A Scientific Review, E•Alliance, 1 (November 2022).
Id.
Id. at 6
Shoshana Goldberg, Fair Play: The Importance of Trans Participation for Transgender Youth, Center for American Progress, 17 (February 2021).
Id. at 11.
Id. at 17.
Id. at 15-17.