History, as the saying goes, is written by the winners — which is why two states and female athletes represented by Alliance Defending Freedom are asking the U.S. Supreme Court to make sure that the history of women’s sports is written fairly.
In 2020, Idaho passed HB 500, better known as the Fairness in Women’s Sports Act, in response to a disturbing trend of school boards and athletic associations allowing males to compete against women in women’s sports. A year later, West Virginia followed suit, passing and enacting HB 3293.
Just when women and girls in those states felt they could breathe a little easier knowing their athletic pursuits wouldn’t be marred by lopsided competition, the ACLU stepped in to challenge the laws. Instead of a smooth sprint toward the finish line, the ACLU and the court system have thrown several hurdles at female athletes trying to ensure that their sports remain safe and fair.
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Beyond the competition on the field, the obvious tension happening off the field and in courthouses is a question of exclusion. Those fighting against the state laws claim they exclude male athletes from competition that aligns with their identity if it is different from their biological sex.
Multiple states have banned transgender student athletes from participating on the teams that align with their gender identity. (AP Photo/Samuel Metz, File)
Women and girls are rightly pointing out that — while there is a place for male athletes to compete with other men — female athletes have nowhere else for fair competition without these laws in place. If they are forced to compete against men with natural physical advantages in women’s sports, they will never be champions in their own sports. This is one of the reasons Title IX was passed more than 50 years ago, and now it’s under the threat of being virtually neutralized.
There are numerous examples of how this brave new world is playing out for female athletes but two in particular that are part of the cases that the Supreme Court could decide to hear.
Madison Kenyon and Mary Kate Marshall are gifted athletes who ran track and cross-country at Idaho State University. Prior to their graduation, the two girls had to compete against a male athlete who pushed them down in the rankings.
Describing what it’s like to go through countless hours of training only to lose to a man, Madison points out, "We’re supposed to smile and cheer and clap and pretend that we’re all very happy about this—that we don’t object to seeing our years of effort and lifelong dreams go up in so much smoke, and that we don’t mind denying reality as long as it pleases the woke crowd and keeps our school safe from a lawsuit." Madison and Mary Kate both intervened to defend Idaho’s law.
In West Virginia, another former college athlete joined a lawsuit to defend that state’s law. Lainey Armistead served as team captain on the West Virginia State University women’s soccer team, where she experienced the physical toll of fair competition.
She saw the writing on the wall as she heard stories of other girls having to compete against men, and knowing that competing against men posed an unnecessary danger to her and her teammates, she felt she had no choice but to stand up for her peers and up-and-coming stars of women’s sports.
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Unfortunately, most courts so far have ignored the arguments of girls like Madison, Mary Kate, and Lainey.
While males are being allowed to compete in women’s sports, females are being excluded from medal ceremonies, tournaments and other opportunities to enjoy the fruits of their labor as elite athletes. That’s why Idaho and West Virginia filed petitions to the U.S. Supreme Court, asking it to overturn lower court decisions that block them from promoting fair competition.
ADF, where I serve as legal counsel, represents Madison, Mary Kate and Lainey, who, together with their states, are asking the high court to recognize what a growing number of athletic associations are concluding and finally settle this matter.
As Americans who believe in true equality, not a distortion of it, we must join Idaho and West Virginia in standing up for women, because biological reality and common sense tell us what we all instinctively know: men are men and women are women.
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No woman should be sidelined in her own sport because a man subjectively believes himself to be a woman. And no girl should be left off the podium because the authorities in charge of her sport don’t care that they are allowing men to rob her of her opportunities and advancement.
But if we sit back and do nothing, that’s exactly what will happen.