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Do Ohio Republicans Really Want to Use Genital Exams to Ban Trans Athletes?

The difficulties and the distortions of the fight over trans sports.
June 13, 2022
Do Ohio Republicans Really Want to Use Genital Exams to Ban Trans Athletes?
(Composite / Photos: Shutterstock)

Earlier this month, news of the latest outrageous move from a GOP-dominated state legislature spread on some news sites and on social media: The Ohio House of Representatives passed a bill that not only excluded transgender students from school sports but reportedly also required genital checks—and even internal pelvic exams—for female athletes to ensure they were not trans. Washington Post columnist Alyssa Rosenberg characterized the proposed law as a “new nadir,” because it “gives anyone . . . the standing to challenge an athlete’s gender, and provides no disincentives for making false reports.” A viral thread on Twitter, with nearly 200,000 likes and nearly 80,000 retweets and quote-tweets, asserted that under this law, any girl in Ohio would have to submit to a medicalized sexual assault to play middle school or high school sports:

In fact, the genital-exam panic is almost certainly a nothingburger, the joint product of Republican clumsiness and Democratic alarmism. It is also a diversion from the underlying problem of sports (particularly school sports), sex, and gender identity—a genuinely complicated issue where reactionary culture-war politics intersect with good-faith concerns about equity for girls and women.

First, let’s get the Ohio dystopia out of the way: A close look at the story shows that the chances of mandatory genital exams for female athletes actually happening are practically nil. For starters, House Bill 151, the “Save Women’s Sports Act,” has yet to be approved by the Ohio Senate, let alone signed into law. What’s more, it’s not clear that the bill’s language actually calls for genital checks. What it says (after mandating single-sex teams, permitting the simultaneous availability of mixed-sex teams, and prohibiting schools and scholastic sports bodies from allowing “individuals of the male sex” to participate in female-only teams or events) is this:

If a participant’s sex is disputed, the participant shall establish the participant’s sex by presenting a signed physician’s statement indicating the participant’s sex based upon only the following:

(1) The participant’s internal and external reproductive anatomy;

(2) The participant’s normal endogenously produced levels of testosterone;

(3) An analysis of the participant’s genetic makeup.

This language—added to the bill on June 1 by Republican state representative Jena Powell, who first cosponsored a bill with this same language in early 2020—is hardly a sterling example of legislative draftsmanship. It is vague in several ways. One, it’s not clear whether the physician’s statement would have to be based on all three criteria, or just one or two would be enough. Two, it is not clear whether the physician would be required to actually perform an exam on the student; a similar provision in an Idaho bill was clarified to state that no new physical exam was required as long as the attestation came from a doctor who knew the individual to be a biological female. Leave it to Republican legislators to make a hot mess of any culture-war-related bill.

It seems safe to say that girls who play sports in Ohio schools will not be undergoing genital checks or pelvic exams—if only because any legislators who mandated such a thing would get clobbered by their own conservative constituents. The most likely scenarios are that the bill will either fail to pass the Ohio Senate or will be amended to alter this language. And if somehow the bill were to pass both houses of the legislature, Gov. Mike DeWine indicated last year that he would veto it.

That still leaves the underlying question. Are bills like HB 151, which have proliferated around the country in recent years, a meanspirited assault on a handful of transgender athletes who simply want an opportunity to play sports? Or are they a genuine effort to protect athletic opportunities for girls and young women? Are right-wing politicians, activists, and media figures cynically weaponizing a made-up problem to undermine transgender rights and mobilize bigots, or are female athletes, parents, and others trying to address a real issue that liberal politicians and journalists have tried to sweep under the rug because of political correctness?

Of course there’s some cynical weaponizing going on. If the only time you mention women’s sports in a non-transgender context is to make lame jokes about how no one watches the WNBA, you’ll forgive me if I don’t take your concern about the trans menace to female athletes very seriously. (Chances are, it’s more about the “trans” part than the “female athletes” part.)

But it is also true that the nominally “conservative” camp on this issue includes many people who can hardly be suspected of fake concern for women’s sports, or of anti-LGBT bias. They include tennis great Martina Navratilova, the first professional athlete to publicly and voluntarily come out as gay—back in 1981, when it cost her a lot of money in endorsements from skittish corporations.

In December 2018, Navratilova rankled many of her fans by tweeting, “You can’t just proclaim yourself a female and be able to compete against women. There must be some standards, and having a penis and competing as a woman would not fit that standard.” After a backlash, she deleted the tweet and issued an apology of sorts: “I am sorry if I said anything anywhere near transphobic—certainly I meant no harm—I will educate myself better on this issue but meantime I will be quiet about it.” But those who expected Navratilova’s self-education to end in falling into lockstep with the progressive party line were disappointed. Less than two months later, she wrote an op-ed for the London Times reaffirming her view that requiring female athletes to “compete against people who, biologically, are still men” was “insane” and “cheating.” Since then, she has spoken out in support of Idaho’s law banning transgender athletes from competing in women’s and girls’ interscholastic sports. And, after President Biden issued an executive order on the day of his inauguration directing his administration to prevent and combat discrimination based on sexual orientation or gender identity in a wide range of areas including school sports, Navratilova said that a “carve-out” was needed on “the higher level of high school, college and [professional]” athletics.

Navratilova is a cofounder of the Women’s Sports Policy Working Group, which opposes both blanket bans and full inclusion when it comes to transgender participation in girls’ and women’s sports, advocating instead a “middle way”: participation but not direct competition in some cases, and competition in others as long as the advantage conferred by male puberty is sufficiently mitigated. The group’s other members and supporters include Title IX pioneer and veteran gender equity advocate Donna Lopiano, civil rights lawyer and three-time Olympian swimming gold medalist Nancy Hogshead-Makar, and groundbreaking transgender tennis player Renée Richards.

While transgender inclusion in women’s sports has been a contentious issue on the professional and Olympic levels, that debate has been shaped by the stringent requirements an athlete must meet to qualify. Scholastic sports are different, especially in K-12. As of 2019, 17 states allowed high school students to participate in sports in accordance with their gender identity without undergoing any medical procedures—surgical or hormonal—related to what is often called “sex reassignment” or “gender reassignment.” One of those states is Connecticut, where Andraya Yearwood won the state championships in the girls’ 100- and 200-meter sprints in 2017 without either puberty blockers or hormone therapy. Then, in 2018 and 2019, Yearwood and another transgender sprinter, Terry Miller, won first and second places in several state track championship events two years in a row. (By then, both were undergoing hormone treatments, but for a much shorter period of time than it would normally take for the biological male advantage to be substantially mitigated.) Amid controversy, several female runners backed by Alliance Defending Freedom (ADF), a conservative legal group, filed a complaint seeking to block the participation of trans athletes in girls’ sports as fundamentally unfair. The lawsuit was dismissed in April 2021 on procedural grounds: Since the transgender students whom the plaintiffs named had already graduated and the plaintiffs could identify no other trans athletes they would personally have to compete against, the question was moot.

The question of fairness in the Connecticut lawsuit was fiercely debated. ADF counsel Christiana Kiefer spoke of the plaintiffs’ “demoralizing experiences of losing to male runners.” Supporters of the trans athletes pointed out that one of the plaintiffs, Chelsea Mitchell, had beaten Miller in two state championship races just two days after the lawsuit was filed, a counterpoint to claims that biologically female athletes are hopelessly disadvantaged against transgender competitors.

This year, the debate was revived, with far great intensity, when University of Pennsylvania swimmer Lia Thomas became the first transgender athlete to win an NCAA Division I title. (Runner CeCé Telfer had won a Division II track and field championship in 2019, only to be disqualified from women’s events in the Olympics two years later because of too-high blood testosterone levels.)

Thomas, who won the 500-yard freestyle swimming event at the NCAA Championships at Harvard on March 17, had spent three years as a swimmer on the UPenn men’s team and had started transitioning during the last of those years, then took time off during the COVID pandemic and returned to compete as a woman. Even before the championship win, Thomas’s dominance in women’s swimming meets, which included breaking several records, set off new polemics about transgender athletes in women’s sports—and prompted complaints from some competitors.

The controversy was exacerbated by a dispute over rules. Thomas had started to compete in women’s events under the 2010 NCAA policy, which applied across all sports, allowing male-to-female transgender athletes to compete in women’s events after competing one year of testosterone suppression therapy (which most experts agree is not nearly enough to neutralize the biological advantages conferred by male puberty). In January 2022, the NCAA changed its policy so that eligibility rules in each sport were determined by the policies of that sport’s governing body—in Thomas’s case, USA Swimming. But then, in early February, USA Swimming changed its own rules, announcing two new requirements: Athletes applying to compete in women’s events must have at least 36 months of tests showing blood testosterone levels less than 5 nanomoles per liter (average female levels are 0.5-2.4, compared to 10-35 for males) and must provide evidence, to be assessed by a panel of three independent experts, that the effects of male puberty do not give them “a competitive advantage over . . . cisgender female competitors.” This would have likely disqualified Thomas, who had only started hormone therapy in March 2019.

A letter written by Hogshead-Makar on behalf of 16 anonymous members of the UPenn women’s swim team urged the NCAA to abide by the new USA Swimming rules. The letter stressed that the signers fully supported transgender rights—and Thomas—off the field, but were concerned that Thomas would have an “unfair advantage” in competitive events. In response, a letter from over 300 current and former NCAA swimmers expressed “support for Lia Thomas, and all transgender college athletes, who deserve to be able to participate in safe and welcoming athletic environments.” Ultimately, the NCAA decided that it would phase in the new rules over the coming seasons rather than introduce them immediately, and Thomas would thus be allowed to compete.

Thomas’s impressive career in women’s sports has become Exhibit A for those who say trans inclusion is egregiously unfair to biologically female athletes. Claims about Thomas’s alleged hopeless mediocrity in men’s sports have been somewhat exaggerated by cherry-picking a single statistic: 554th ranking in the men’s 200-yard freestyle pre-transition. In fact, Thomas had been considered a promising swimmer in the men’s program, even placing second in the 500-yard men’s freestyle in the 2019 Ivy League Swimming and Diving Championships. But it is also true that Thomas’s overall rankings show a dramatic improvement post-transition: from 554th among men to 65th among women in 200-yard freestyle; from 32nd among men to eighth among women (with a win in a single race) in the 1,650-yard freestyle; and from 65th among men to top champion among women in the 500-yard freestyle. While Thomas’s supporters have argued that this improvement is not necessarily gender-related and that “Thomas could have simply hit her stride during her senior season,” this seems like a stretch.

A stronger point, perhaps, is that Thomas did not exactly crush the competition: During the NCAA championships, she broke no records and lost in two out of three events, finishing fifth in the 200-yard freestyle race and eighth in 100-yard freestyle. Clearly, it’s not the case that biologically female athletes don’t have a chance against a male-to-female transgender competitor. But just as clearly, the transgender athlete has an advantage—sometimes enough to make the difference between “pretty good” and “all-star,” as Washington Post columnist Megan McArdle puts it. What’s more, some research shows that this advantage may not be neutralized even over the long term. And it affects not only speed and muscle mass but other important assets, such as greater bone density, larger hands and feet, and higher lung capacity relative to body size—none of which is reduced by hormone therapy.

These are real concerns, and they are apparently shared by many Americans who support transgender rights in general but may think of sports as a “carve-out.” In a Gallup poll last year, two-thirds of respondents said that transgender people should be able to serve in the military—but only a third felt that transgender athletes should play on teams that match their gender identity rather than their birth sex. Even among people who personally know someone who is transgender, support for trans athletes’ right to play in accordance with their identity only went up to 40 percent.

Since the debate has often been framed as one between fairness and inclusiveness, the question of what’s “fair” inevitably comes up. In a recent video examining the issue of trans athletes, German physicist and science commentator Sabine Hossenfelder concludes that “it seems clear from the data that trans women keep an advantage over cis women, even after several years of hormonal therapy” and that “no amount of training that cis women can do is going to make up for male puberty.” In that sense, Hossenfelder admits, trans inclusion “isn’t fair”—but then she pivots to the position that “athletic competition has never been fair in that sense”: Superior athletes, male or female, have genetic advantages over other people, whether it’s the runner’s long legs, the swimmer’s lung capacity, or the basketball player’s height. Others say that the “fairness” question is further diluted by the indisputable fact that young people from affluent families have vastly greater opportunities to benefit from training and coaching.

Such arguments, I suspect, are unlikely to persuade. Most people find it self-evident that the advantage Lia Thomas’s natal sex gives her over biological females is a fundamentally different kind of “unfair” than the advantage Michael Jordan’s genes give him over other males—just as, for instance, they instinctively feel that the advantage conferred by doping is a fundamentally different kind of “unfair” than the advantage conferred by having more time and resources to train. Social justice activists would likely argue that such assumptions arise from precisely the sort of deeply ingrained, culturally constructed biases that we should be encouraged to question: If we feel that the trans advantage is different, they suggest, it’s because, deep down, we don’t believe that transgender women are women. And yet, without getting into the thorny “What is a woman?” question, it is entirely possible to believe that trans identities are real and should be respected and that, in some areas including sports, biological sex matters—especially post-puberty. It’s possible to question cultural biases and still come away with that conclusion.

I strongly doubt that the nightmare scenario of women’s sports being destroyed by an invasion of mediocre male athletes faking transgender identities is a real danger. Yes, in theory, a pretty-good male marathon runner could transition, win the women’s marathon, get rich and famous, and then detransition. But for one thing, it would be a pretty risky strategy: The top woman in the 2022 marathon beat all but 30 male runners. For another, the opprobrium of being exposed as a likely fraud would surely outweigh the glory.

But the question of fairness—for instance, to Emma Weyant, who won second place in the NCAA 500-yard freestyle but would have been the champion if she hadn’t been beaten by Lia Thomas—still remains. A thoughtful recent New York Times piece by Michael Powell on the controversy over transgender athletes ends with a vignette in which the father of one of the other competitors watches Thomas in another event and feels sympathy for the pressure she is under. But the man also makes it clear to Powell, looking back on Thomas’s win, that “nothing about that race felt fair to him or his daughter.” Suggestions that fairness is not as important as inclusion and that young female athletes should gracefully accept losing in order to let marginalized people compete can rankle, especially when no such demands are being made of their male peers: To feminists critical of the transgender movement, this sounds a lot like a very traditional it’s more important to be nice than to win message to girls and young women.

And, while a handful of elite transgender athletes do not pose an existential threat to women’s sports, the trend of biology-denying rhetoric in pseudoscientific garb is disturbing—especially when this rhetoric attacks sex segregation in sports. Last year, Scientific American ran a piece on transgender inclusion in sports by Jack Turban, a fellow in child and adolescent psychiatry at the Stanford University School of Medicine who specializes in the mental health of transgender youth, which flatly asserted that “the athletic advantage conferred by testosterone is equivocal.” It’s true that an individual athlete’s testosterone levels do not necessarily predict performance, but there is no doubt whatsoever about the effect of testosterone on the male physique.

More recently, the “Real Scientists” Twitter account boosted a viral thread by Sheree Bekker, assistant professor of sports medicine at the University of Bath, claiming that the real reason for sex segregation in sports is that “the dominance of men athletes was threatened by women competing” and that the “narrative” of “women being inherently physically inferior to men” was “concocted as a reason to segregate us without threatening masculinity.” Bekker’s “evidence” consists of a few cherry-picked examples from such sports as shooting and figure skating.

Powell’s Times article also notes that a number of trans activists and academics are just fine with the idea that trans inclusion may undermine the rationale for separate women’s sports. One such academic, University of Maryland doctoral student Anna Posbergh—whose most recent article in the International Review for the Sociology of Sport explains that the author “draw[s] from Michel Foucault’s theory of ‘governmentality’” to investigate protective policies for women athletes—told Powell, “We need to learn to sit with discomfort.” What this approach would mean in practice, though, is learning to sit comfortably with the prospect that, except in a handful of sports where male strength and speed don’t matter, no woman—or, at least, no biological female—will ever again be an Olympic medalist, a top marathon finisher, or an NCAA champion.

Obviously, there is a huge swath of middle ground between “abolish women’s sports” and “assign athletes to teams based on birth sex only.” The USA Swimming guidelines, for instance, seem like a fairly reasonable compromise, at least if the experts on the review panels take seriously the responsibility to screen out transgender athletes who have a clear biological sex-related advantage over biologically female competitors. The NCAA’s decision to phase in those guidelines gradually rather than spring the new rules on Thomas after a season of grueling training is understandable. But the NCAA also created a situation in which the asterisk next to Thomas’s name was undeniable, and that could have been handled far better: for instance, by giving a co-championship to Weyant, the second-place finisher.

How to deal with transgender athletes in K-12 is a separate issue, entangled with far more fraught questions of the ethics of gender reassignment interventions for minors. Utah Gov. Spencer J. Cox, a Republican, won progressive plaudits in March for vetoing a bill that imposed an all-out ban on cross-sex participation in school sports, citing both compassion and the practicality; Gov. Cox’s statement pointed out that of 75,000 high school students playing sports in Utah, a total of four were transgender and only one of those was playing on a girls’ team. But it is noteworthy that Gov. Cox also acknowledged the real problems of fairness that trans inclusion could sometimes pose for girls’ sports and supported a commission to deal with such problems on a case-by-case basis. (The legislature overrode his veto, opening the way to legal challenges.)

It’s difficult to have an honest conversation on this issue, with emotions running so high and demagoguery running so loud. But perhaps right now, we are taking tentative steps in that direction.

Cathy Young

Cathy Young is a writer at The Bulwark, a columnist for Newsday, and a contributing editor to Reason. Twitter: @CathyYoung63.