Who could object to the Equality Act? – The Economist

Oct 22nd 2020

WASHINGTON, DC

WHEN SHE was ripping through the water during swimming races as a little girl, it did not occur to Nancy Hogshead-Makar that she might one day make a career out of it. But that changed during high school, when she won a full athletic scholarship to university. Four years later Ms Hogshead-Makar won three gold medals at the 1984 Olympics.

Her achievements would have been impossible without Title IX, a brief one-paragraph amendment made to the Civil Rights Act in 1972, when she was ten years old. Title IX banned discrimination on the basis of sex in educational institutions that receive federal funding. This meant that most schools and all universities were legally required to provide equal opportunities in activities. It covered things like scholarships; it also resulted in the provision of separate programmes for girls.

Its effect on female participation in sport was immediate and dramatic. Two years after Title IX was passed, the number of girls playing high-school sports jumped from under 300,000 to 1.3m. Today the figure is 3.4m. The lost ground it enabled women to make up has been one of the biggest achievements in the battle for sexual equality in America. It has also had important knock-on effects: research suggests that girls who play sport stay in education longer and get better jobs.

Nearly half a century later, there is still some way to go: Ms Hogshead-Makar, who went on to become a lawyer and establish Champion Women, a womens-rights non-profit, says many universities do not comply with Title IXs requirements. And yet some of its protections may soon be erased.

This is because of the demands of another group that has long suffered discrimination: transgender men and women. Their call to be recognised as members of the gender with which they identifyamplified by the merging of their rights with those of gay and lesbian Americanshas led to demands for an Equality Act, which would ban discrimination on the basis of sex, gender identity and sexual orientation. The House of Representatives passed it in 2019; Joe Biden has said making it law would be a priority during his first 100 days in the White House.

A federal anti-discrimination law of this kind is sorely needed. In its absence a clashing patchwork of laws and regulations has sprung up across states, counties and cities. Conflicts over such matters are increasingly decided by the courts; they should be settled by elected lawmakers. Eliza Byard, executive director of GLSEN, which campaigns for the rights of LGBT students, says the passing of the Equality Act would be a transformative moment of liberation for millions of Americans who have had to live as second-class citizens.

The problem is that parts of the bill appear to put the needs of transgender people above those of women. This is because the act redefines sex in Title IX and other amendments of the Civil Rights Act to include gender identity rather than making transgenderism a protected category of its own. Its definition of gender identity is fuzzy and appears to downplay the reality of sex, listing as it does, gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individuals designated sex at birth. The way the act is written suggests that women-only spaces, from public bathrooms to sports teams and prisons, would have to be open to transgender women.

The problem is clearest-cut when it comes to Title IX. That is because although opening up spaces once reserved for females to transgender women carries security and privacy concerns, these can be mitigated to an extent: toilets can be made both unisex and more private (prisons would pose more of a problem). But the protections of Title IX are rooted in the differences between the sexes, chiefly, the physical advantages bestowed by testosterone, which allows boys of average sporting ability to run faster or jump higher than exceptionally talented girls. The Equality Act would require female sports teams to include transgender players, even if their transition from male to female was not obvious: if, for example, they had not taken testosterone-suppressing drugs.

Transgender activists tend not to accept that this is unfair. When asked what she thought about transgender girls with undiminished levels of testosterone racing against female runners and trouncing them (as has happened in at least one state with such a policy) Ms Byard of GLSEN said, But they are girls! They are girls. Men dont compete in womens sports.

This denial of the meaning of sex, which is reflected in the language of the Equality Act, is a poor ground on which to build policy. The implications could extend well beyond spaces once reserved for women. Doriane Coleman, a law professor at Duke University, points out that if policymakers are not allowed to see sex, all the centres of excellence at research hospitals that currently exist to collect data on and then study sex differences in immunology, cancer, you name it, would be defunded and, indeed, become verboten.

Ways exist to prevent discrimination against transgender Americans without denying the reality of sex. In prisons, where transgender women housed with men are much more likely to be sexually assaulted than other inmates, wings could be set aside for them. In sport, some champions of Title IX have suggested that transgender girls who have not been through puberty as males (because they have taken testosterone blockers and then oestrogen) could be included in womens teams. A system of adjusted scores and start lines, according to testosterone levels, could also be introduced. This is about testosterone, not whether someone is transgender or not, says Donna Lopiano, adjunct professor of sports management at Southern Connecticut State University and a former college sports director who is lobbying for a change to the wording of the act.

Such solutions are unlikely to satisfy some feminists, who believe no person born a man should win a womens contest. For many trans activists, these work-arounds would amount to a denial of gender identity and the continued perpetuation of discrimination. Negotiating a path through these clashing demands would be messy and time consuming. But ending discrimination against one group of people should not depend on discriminating against another.

This article appeared in the United States section of the print edition under the headline "Liberalism and its contradictions"

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Who could object to the Equality Act? - The Economist