Tracy L. Turner (Southwestern Law School) has posted Dismantling the Cage of Binary Sports (67 St. Louis University Law Journal 41, (Fall 2022)) on SSRN. Here is the abstract:
This article responds to recent media coverage and legislative action regarding transgender athletes. For every step forward that organizations like the National Collegiate Athletic Association take to improve the wellbeing of transgender athletes, they are met with increasingly vehement objections. Often, these objections take the form of hurtful comments about the bodies, sexuality, and personality of individual athletes. Recently, several state legislatures have enacted “fairness” laws that categorically exclude transgender athletes from female programs. This article considers the relationship between two significant harms perpetuated by sex segregation in athletics: the relegation of female athletes to a second-tier status that caps their potential, and the trauma gender minority athletes experience while trying to fit into a heteronormative structure. Using Equal Protection doctrine, Title VII, and Title IX, the article argues against rigid sex and gender classifications in favor of individualized assessment of merit. The overall goal of the article is to advocate for a system of school athletics defined by inclusion rather than exclusion in which every athlete can find their ideal competitive fit and maximize their athletic excellence, a result that will strengthen the quality of American sport.
